IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1866 of 2007. Reserved on: 25.08.2008. Decided on: 23.09.2008. Barfi Ram and Another. … … … Petitioners. Versus State of Himachal Pradesh and Others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. G.C. Gupta, Senior Advocate with Mr. Amar Deep Singh, Advocate. For Respondents No.1 and 2: Mr. Rajinder Dogra, Additional Advocate General. For Respondents No.3 to 5: Mr. K.S. Banyal, Advocate. Rajiv Sharma, Judge: The brief facts necessary for the adjudication of this petition are that the consolidation proceedings commenced in village Bhebad during the year 1990-91. The Consolidation Officer, Hamirpur on 21st May, 1991 allotted Khasra No.419/2 measuring 0-12 marlas to the petitioners and the tatima on the basis of consolidation was ordered to be prepared and Khasra No.872/402 measuring 0-12 marlas was allotted to Whether reporters of local papers may be allowed to see the judgment? No. - 2 - respondents No.3 and 4, whereas Khasra Nos.422 and 850/290/1 were allotted to respondent No.5. The respondent No.5 filed an appeal against the order dated May 21, 1991 before the Settlement Officer (Consolidation of Holdings), Hamirpur. The appeal was registered and assigned case No.71/91. The Settlement Officer after hearing the parties modified the order passed by the Consolidation Officer vide order dated 20th November, 1991. This order was not assailed by any of the parties, meaning thereby it had attained finality. However, respondents No.3 and 4 moved an application before the Consolidation Officer under Section 56 of the Consolidation of Holdings Act (hereinafter referred to as the Act) for correction of tatima with regard to old Khasra No.419 and new Khasra No.444/1 measuring 1 kanal 7 marlas which was registered as case No.89/2005. The Consolidation Officer dismissed the application for correction on 8th March, 2006. The respondents No.3 and 4 thereafter filed a revision under Section 54 of the Act before respondent No.2 against the order of Consolidation Officer, dated 8th March, 2006. The respondent No.2 on the basis of the report of the Assistant Consolidation Officer came to the conclusion that the tatima of Khasra No.419 was not prepared in accordance with possession at the spot. He vide order dated 11.10.2006 passed the order whereby corrections were directed to be made as per the operative portion of the order. The petitioners have assailed this order dated 11.10.2006. Mr. Gian Chand Gupta, Senior Advocate had strenuously argued that the matter has attained finality vide order dated 20th November, 1991 since according to him no appeal was preferred against this order under sub-Section(4) of Section 30 of the Act. He further contended that the application filed under Section 56 of the Act by the respondents No.3 - 3 - and 4 was misconceived without assailing the order passed by the Settlement Officer dated 20th November, 1991. He lastly contended that the revision could neither be entertained nor adjudicated upon by the competent authority without taking into consideration order dated 20.11.1991. According to him the order dated 11.10.2006 is without jurisdiction and is liable to be interfered with by this Court. The learned Additional Advocate General appearing on behalf of respondents No.1 and 2 and Mr. B.S. Banyal appearing on behalf of respondents No.3 to 5 have supported the order dated 11.10.2006. According to them the application under Section 54 of the Act was maintainable without assailing the order of Settlement Officer dated 20.11.1991. I have heard the learned counsel for the parties and perused the record carefully. A Scheme is required to be prepared by the Settlement Officer under Section 22 of the Act and thereafter the draft Scheme is required to be published. The Scheme is required to be confirmed under Section 29 of the Act. Thereafter the Consolidation Officer has to undertake/carry out re-partition in accordance with the Scheme of Consolidation of Holdings confirmed under Section 29 of the Act. Any person aggrieved by re-partition may file written objections within 30 days before the Consolidation Officer, who shall after hearing the objections may pass such orders as he considers necessary, confirming or modifying the re-partition. Any person under sub-section (3) of Section 30, aggrieved by the order of the Consolidation Officer, may within one month of that order file appeal before the Settlement Officer (Consolidation). As per sub-section (4) of Section 30 of the Act any person aggrieved by the order passed by the Settlement Officer - 4 - (Consolidation) may within 60 days file an appeal against the order of Settlement Officer before the Director of Consolidation of Holdings. The order passed by the Consolidation Officer as per the language employed in sub-section (4) of Section 30 of the Act is final and is not liable to be called in question before any Court. In the present case, the Consolidation Officer has passed the order on 21.5.1991(Annexure P-1). The respondent No.5 has filed an appeal under sub-Section (3) of Section 30 of the Act before the Settlement Officer assailing the order of Consolidation Officer. The Settlement Officer modified the order of the Consolidation Officer vide order dated 20th November, 1991. If any person was aggrieved by the order of Settlement Officer dated 20.11.1991, he was required to file an appeal before the respondent No.2. However, in the present case, respondents No.3 to 5 instead of assailing the order dated 20th November, 1991 had chosen to file an application under Section 56 of the Act. Section 56 reads thus:- “56. Correction of clerical errors.–Clerical or arithmetical mistakes in a scheme made, or on order passed by any officer under this Act arising from any accidental slip or omission may at any time be corrected by the authority concerned either of its own motion or on the application of any of the parties.” It is clear from the phraseology employed in Section 56 that clerical or arithmetical mistake made in the Scheme may by order of any officer under the Act arising from any accidental slip or omission may at any time be corrected by the authority concerned either on its own motion or on the application of any of the parties. This application was preferred before the Consolidation Officer on 13.7.2005 (Annexure P-3). The Consolidation Officer rejected this - 5 - application vide order dated 8th March, 2006 observing therein that the shortage in the allotment could not be cured under Section 56 of the Act and the parties could approach the competent court of law. The respondents No.3 and 4 challenged this order under Section 54 of the Act before the learned Director of Consolidation on 10.4.2006. The heading of the Revision Petition read thus:- “Revision petition U/S 54 of the Consolidation Holdings Act against the order of C.O. (CH) Hamirpur (H.P.) dated 8.3.2006 vide which the Ld. C.O. Hamirpur (H.P.) have wrongly and illegally dismissed the petition U/S 56 of the Act and with the prayer to set aside the order of the C.O. (C.H.) Hamirpur dated 8.3.2006 after acceptance of revision petition.” It is thus evident that the revision petition under Section 54 of the Act was filed against the order of the Consolidation Officer, Hamirpur dated 8.3.2006. The respondent No.2 without taking into consideration that the matter has already attained finality vide order dated 20th November, 1991 passed the impugned order on 11.10.2006 whereby he has directed for carrying out the necessary corrections. There is merit in the submission of Mr. Gian Chand Gupta. Once the order had been passed by the Settlement Officer on 20.11.1991 which has attained finality, the same could only be altered/modified by way of appeal preferred under Section 4 of Section 30 of the Act. There is hierarchy of statutory authorities prescribed under Section 30 of the Act who have to hear the appeal. A person aggrieved by the order of the Consolidation Officer has to file an appeal before the Settlement Officer. Any person aggrieved by the order passed by the Settlement Officer in the same hierarchy has to file an appeal before the Director of - 6 - Consolidations. The respondents No.3 and 4 without ever challenging the order dated 20.11.1991 which had become final, have chosen a noble method of filing an application under Section 56 of the act. Section 56 is only meant to correct clerical or arithmetical mistakes/errors. While exercising the powers under Section 56 of the Act the authority can neither add nor reduce or alter the areas which have already been allotted under the consolidation proceedings on the basis of Scheme. The intention of the legislature while framing section 56 is to give very limited power to the authority in order to correct clerical or arithmetical errors. The application preferred by respondents No.3 and 4 was misconceived. The Consolidation Officer as noticed above had observed in his order dated 8th March, 2006 that shortage in the area could not be cured under Section 56 of the Act. If under Section 56 the area is permitted to be increased or decreased, it will be against the spirit of the Act. The Act is enforced in various steps. A Scheme is prepared, thereafter it is published and confirmed and thereafter re-partition takes place and ultimately records of rights are also changed and the parties are put in possession of their respected allotted areas. The position settled on the basis of the Scheme which is fountain head of the Consolidation Scheme cannot be permitted to be altered by invoking Section 56 of the Act except for arithmetical or clerical errors. The application under Section 56 of the Act was filed by respondents No.3 and 4 on 13.7.2005 though the order of Settlement Officer is dated 20th November, 1991. This application could not be entertained after 14 years. Though expression “any time” has been mentioned in Section 56, however, it is to be given pragmatic meaning. Expression “any time” would mean - 7 - within reasonable period of 3 to 4 years. Settled things cannot be permitted to be unsettled after a considerable lapse of period. The matter is required to be considered from another angle. The respondent No.2 has exercised the power under Section 54 of the Act against the order of Consolidation Officer, dated 8th March, 2006. He has exercised the revisional jurisdiction without taking into consideration the order passed by the Settlement Officer dated 20th November, 1991, which has attained finality. The effect of the order passed by the learned Director, dated 11th October, 2006 is that he has ordered corrections without setting aside the order of Settlement Officer dated 20th November, 1991. He has unsettled the things which have been settled on the basis of order dated 20th November, 1991. Once the hierarchy has been provided in Section 30 of the Act, the same has to be followed and exhausted by filing appeals in the prescribed period of limitation. The parties cannot be permitted to achieve something indirectly which they cannot achieve directly. Assuming hypothetically that the Director could exercise the jurisdiction independently under Section 54 of the Act, was it permissible for him to invoke his jurisdiction after 14 years, is a moot question. The Court is of the considered opinion that even though word “any time” has been used in Section 54 of the Act, the same has to be exercised within a reasonable time. It cannot be presumed that the power of revision can be used without taking into consideration the delay and laches of 14 years. Their Lordships of the Hon’ble Supreme Court in number of cases have held that word “at any time” has to be interpreted/considered pragmatically. It cannot be presumed that the power can be exercised beyond a reasonable period. The reasonable - 8 - period though may vary from case to case, but here it should not be more than 3 to 4 years. Their Lordship of the Hon’ble Supreme Court in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham versus K. Suresh Reddy and Others (2003) 7 SCC 667 while interpreting Section 50-B(4) of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 have held that expression “at any time” implies within a reasonable time depending on the facts and circumstances of the case and has to be construed contextually and reasonably and not in an unguided or arbitrary manner. Their Lordships have held as under:- “Even before the Division Bench of the High Court in the writ appeals, the appellants did not contend that the suo motu power could be exercised even after a long delay of 13- 15 years because of the fraudulent acts of the non-official respondents. The focus of attention before the Division Bench was only on the language of sub-section (4) of Section 50-B of the Act as to whether the suo motu power could be exercised at any time strictly sticking to the language of that sub-section or it could be exercised within reasonable time. In the absence of necessary and sufficient particulars pleaded as regards fraud and the date or period of discovery of fraud and more so when the contention that the suo motu power could be exercised within a reasonable period from the date of discovery of fraud was not urged, the learned Single Judge as well as the Division Bench of the High Court were right in not examining the question of fraud alleged to have been committed by the non-official respondents. Use of the word “at any time” in sub-section (4) of Section 50-B of the Act only indicates that no specific period of limitation is prescribed within which the suo motu power could be exercised reckoning or starting from a particular date advisedly and contextually. Exercise of suo motu power - 9 - depended on facts and circumstances of each case. In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act). Hence, it appears that without stating from what date the period of limitation starts and within what period the suo motu power is to be exercised, in sub-section (4) of Section 50-B of the Act, the words “at any time” are used so that the suo motu power could be exercised within reasonable period from the date of discovery of fraud depending on facts and circumstances of each case in the context of the statute and nature of rights of the parties. Use of the words ”at any time” in sub-section (4) of Section 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to simply proceed on the basis of the dictionary meaning of the words “at any time”, the suo motu power under sub-section (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo motu power “at any time” only means that no specific period such as days, months or years are not prescribed reckoning from a particular date. But that does not mean that “at any time” should be unguided and arbitrary. In this view, “at any time” must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation.” - 10 - Consequently, in view of the observations made above, the writ petition is allowed and the impugned order dated 11.10.2006 (Annexure P-6) is quashed and set aside. No costs. September 23, 2008. (Rajiv Sharma) (sck). Judge.