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Judgment
Satish Kumar Mittal, J.—The petitioners and respondents No. 5 to 8 are right holders of village Burj Sema, District Bathinda. In the said
village, consolidation proceedings took place in the year 1960 under the East Punjab Holdings (Consolidation and Prevention of Fragmentation)
Act, 1948 (hereinafter referred to as The Act''). The draft Scheme of consolidation was published, objections invited and it was confirmed.
Thereafter the issue of repartition of land in accordance with the Scheme of Consolidation among the right holders was considered u/s 21(1) of the
Act. Under sub-section (2) of Section 21 of the Act, any person aggrieved by the repartition was entitled to file objections within fifteen days of
the publication before the Consolidation Officer. The petitioners through Bachan Singh, father of petitioners No. 32 to 34, filed objections against
the repartition before the Consolidation Officer alleging that Nehri Land was allotted to them instead of Banjar Land. Secondly, the land
comprising in Khasra No. 60 of Chand Singh, father of respondents 5 to 8. had been given to them, which was of lesser value and the land of
higher value was taken away from them. It was also alleged that Chand Singh was allotted land of higher value in excess. The Consolidation
Officer,--vide order dated 27th May, 1959 accepted those objections and made changes in the repartition order.
Feeling aggrieved against the aforesaid order, Chand Singh, father of respondent No. 5 to 8, filed an appeal before the Settlement Officer u/s
21(3) of the Act. The said appeal was dismissed by the Settlement Officer, Consolidation,--vide his order dated 28th July, 1959. Thereafter,
Chand Singh further challenged those orders by filing the appeal u/s 21(4) of the Act before the Assistant Director, Consolidation, to whom the
power of the State Government was delegated. The Assistant Director, Consolidation,--vide his order dated 27th November, 1960 partly
accepted the said appeal. In order to avoid bifurcation of ''C'' grade land Tak of Chand Singh, Bachan Singh was given Killa Nos. 12/ 14, 12/17,
24/6, 24/7, 24/14, 24/15, 24/16, 24/17 and a part of Killa No. 24/24. Accordingly, the changes were made in the repartition Scheme. As a result
of the said amendment in repartition, the watercourse was placed mostly on one side of the Tak of Chand Singh.
The said order was accpeted by both the parties as none of them further challenged the said order by filing a petition u/s 42 of the Act.
According to the repartition made by the aforesaid order, the parties took possession and made improvements in their respective shares. In the
meanwhile, Chand Singh and Bachan Singh expired.
After 25 years of the order of the Assistant Director, Consolidation, the sons of Chand Singh (respondents No. 5 to 8 herein) filed a petition u/s
42 of the Act challenging repartition of the land. It was alleged that while allotting Block-wise area in the repartition, the consolidation authority had
acted against the consolidation scheme. It was further alleged that they had been allotted less land of the lesser value and allotted more land of the
higher value which has resulted into allotment of less land to them. It was further alleged that the watercourse was passing through the middle of
their Tak, which has bifurcated their Tak into two parts. Therefore, the repartition of the land was illegal as it was done by the Consolidation
Officer totally in violation of the Consolidation Scheme.
The petitioners opposed the said petition on the ground of limitation as well as on merits. The Additional Director, Consolidation,-- vide
impugned order dated 28th June, 1985 has allowed the said petition while observing that for challenging the repartition order u/s 21(1) of the Act,
no limitation is prescribed. It was held that respondents No. 5 to 8 were not allotted land in Block ''C'', whereby a great loss was caused to them.
After accepting the petition, he remanded the matter to the Consolidation Officer with the direction to allot the land to the parties Block-wise
according to their entitlement in accordance with the provisions of the Scheme. In nutshell, by the impugned order, the repartition made by the
Consolidation Officer, which became final up to the Assistant Director, Consolidation, was set aside and the matter was remanded to the
Consolidation Officer to make fresh partition of the holdings.
Feeling aggrieved against the aforesaid order, the petitioners, have challenged the same in the instant petition. While admitting the writ petition on
18th October, 1985, the operation of the impugned order was stayed.
I have heard the learned counsel for the petitioners and learned counsel for respondent No. 5 and gone through the impugned order.
Learned counsel for the petitioners argued that the petition filed by respondents No. 5 to 8 u/s 42 of the Act before the Additional Director,
Consolidation challenging the repartition made in the year 1960 was hopelessly time barred, and after expiry of more than 25 years, the Additional
Director, Consolidation should not have set aside the repartition order passed by the Consolidation Officer. He further argued that the
Consolidation Officer, after inviting objections to the proposed repartition, ordered the repartition u/s 21(1) of the Act in accordance with the
Scheme of Consolidation. The said order became final between the parties with some modification made by the Assistant Director, Consolidation.
Thereafter, none of the parties remained aggrieved against the repartition and challenged the final order passed by the Assistant Director. Learned
counsel argued that when repartition became final, the Additional Director, Consolidation should not have entertained the petition u/s 42 of the Act
against the repartition at a belated stage as the petition filed by respondents No. 5 to 8 was hit by Rule 18 of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as ''the Rules''). Therefore, the impugned order is not
sustainable in the eyes of law and the same is liable to be quashed.
After considering the arguments of the learned counsel for the parties and the various orders passed by the consolidation authorities, which have
been annexed with this petition, I am of the opinion that the impugned order passed by the Additional Director, Consolidation is liable to be
quashed. Undisputedly, in the present case a scheme of consolidation was framed and published. Objections were invited and thereafter the
scheme of consolidation was confirmed u/s 20 of the Act. After framing the Consolidation Scheme of the village, the Consolidation Officer
proposed the repartition of the land in the manner set out in the said scheme. The objections were invited. The father of some of the petitioners
filed objections to the said scheme. His objections were accepted and the repartition was ordered. While making the repartition of the holdings,
every party, including the predecessor of respondents No. 5 to 8, were also heard. Thereafter feeling aggrieved against the said order, the
predecessor of private respondents, filed an appeal u/s 21(3) of the Act. His appeal was dismissed. Still feeling aggrieved against the said order, he
preferred second appeal u/s 21(4) of the Act before the State Government. The Assistant Director, Consolidation, exercising the powers of the
State Government, dealt with the said appeal, partly allowed the appeal and some relief was granted to him. Accordingly, repartition order passed
by the Consolidation Officer was modified. The order of the Consolidation Officer merged in the order of the Assistant Director, Consolidation
and the said order became final as none of the parties challenged the said order. It appears to me that at the time of repartition the predecessor of
the private respondents accepted the superior quality of land in order to get less land of superior quality so as to protect his land from being
declared as surplus. That is why, after the repartition, he did not further challenge the said order. After accepting the final order of repartition, both
the parties settled into possession of their respective shares and they have made improvements in their holdings. In these facts, in my opinion, the
Additional Director, Consolidation should not have entertained the petition filed by respondents No. 5 to 8 u/s 42 of the Act challenging the order
of repartition passed by the Consolidation Officer, which had become final between the parties up to Assistant Director, Consolidation.
Respondents No. 5 to 8 had not given any valid reasons justifying the filing of the petition u/s 42 of the Act at a highly belated stage. In his order,
the Additional Director, Consolidation has simply observed that no limitation is prescribed under the Act to challenge the order of repartition. The
Additional Director, Consolidation is referring to the Full Bench decision of this Court in Jagtar Singh Vs. Additional Director, Consolidation of
Holdings Jullundur and Another, . In the present case though it was alleged in the petition filed by respondents No. 5 to 8 u/s 42 of the Act that
they were challenging the order of repartition passed by the Consolidation Officer u/s 21(1) of the Act, but actually they had been challenging the
final order dated 27th January. 1960 passed by the Assistant Director, Consolidation u/s 21(4) of the Act. In my opinion, the Additional Director,
Consolidation has committed grave illegality while observing that the petitioners were challenging the order of repartition passed u/s 21(1) of the
Act. In my view, the said order passed by the Assistant Director, Consolidation was merged in the order of the Consolidation Officer, which
became final between the parties. Therefore, to challenge the said order, which was passed under the Act, the aggrieved party was required to file
a petition within six months as prescribed under Rule 18 of the Rules. In case it is taken that Rule 18 of the Rules is not applicable in the present
case and no limitation is prescribed for challenging the order of repartition u/s 42 of the Act, even then the Supreme Court in Gram Panchayat,
Kakran Vs. Addl. Director of Consolidation and Another, , has held that the party aggrieved against the repartition order is required to move the
appropriate authority within a reasonable time. When there is unreasonable and inordinate delay in invoking the jurisdiction u/s 42 of the Act and
the aggrieved party is unable to explain the said delay, the Additional Director Consolidation should not have entertained the said application and
ought to have rejected the same, particularly when during the said period of 25 years the parties had settled possession and made improvements in
the lands allotted to them as per their respective shares. In my opinion, only in one situation the order of repartition can be directly challenged in
inherent power u/s 42 of the Act where parties had neither filed objections nor heard by the Consolidation Officer. In the present case, not only the
objections were invited and confirmed but the parties were also heard by the Consolidation Officer. The said order of the Consolidation Officer
had merged in the order of the Assistant Director, Consolidation. The Additional Director, Consolidation has unsettled the settled possession
without any justification and reasonableness and has totally ignored the fact that the earlier partition order was challenged by the aggrieved party by
filing the appeal and the said order became final. Thus, in my opinion, the impugned order passed by the Additional Director, Consolidation at a
belated stage was wholly without jurisdiction, illegal and arbitrary and the same cannot be sustained in the eyes of law.
Consequently, the writ petition is allowed and the impugned order dated 28th June, 1985 (Annexure P-4) passed by the Additional Director,
Consolidation is quashed with no order as to costs.