IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA LPA No. 66 of 2007 Reserved on :16th September, 2008 Date of Decision: Kishan Chand and others (LRs of Sh. Khazana Ram) Appellants Versus Shri Lachaman and another Respondents Coram The Hon’ble Mr. Justice Jagdish Bhalla, C.J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellants: Mr. Sanjiv Kuthiala, Advocate. For respondent No.1: Mr.Karan Singh Kanwar, Advocate. For respondent No.2: Mr.Ankush Dass Sood, Addl. Advocate General. Sanjay Karol, J. In the present Letters Patent Appeal, legal heirs of Shri Khazana Ram, have assailed the judgment dated 16.6.2007 rendered by learned Single Judge of this Court in CWP No. 170 of 2006, titled as Lachaman vs. Kishan Chand and others (legal heir of Khazana Ram). We have heard the learned counsel for the parties and also perused the record. The challenge is on the ground that while deciding the writ petition the intent, scope and the accepted parameters for adjudicating the Whether the reporters of Local Papers are allowed to see the Judgment? 2 matters of consolidation under the provisions of H.P. Consolidation of Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (hereinafter referred to as the Act) have been ignored which in effect has resulted into the violation of the provisions of the Act. The challenge is also on the ground that the Court has referred to and relied upon the record of proceedings of the Settlement Officer, though based on the personal inspection of the site, in the presence of the parties, is in fact contrary to the revenue record. The dispute pertains to consolidation and allotment of land inter se between Shri Lachaman and Shri Khazana Ram. Shri Khazana Ram died during the proceedings before the Authorities under the Act and his legal representatives were arrayed as parties in his place. For the purpose of determination of controversy, the parties hereinafter i.e., the present appellants, are referred to as “Khazana” and private respondent, is referred to as “Lachaman”. During the year 1992-93 consolidation proceedings were initiated in Village Ropa Thathar, Tehsil Sarkaghat, District Mandi, H.P. and a Scheme of Consolidation was issued by the Authorities under the Act. Feeling aggrieved by the consolidation carried out by the officials, “Lachaman” filed objections (Case No.498/91) under Section 30 (3) of the Act before the Consolidation Officer, Sarkaghat, who in terms of order dated 17.5.1993, allowed the objections and allotted 0.03.76 Hectares of land to him out of Khasra No. 252 belonging to “Khazana”. Aggrieved by the same, “Khazana” filed a Petition under Section 54 of the Act and in terms of order dated 11.11.1999 the Director, Consolidation of Holdings, dismissed the same for being not maintainable 3 since the remedy of statutory appeal had not been exhausted. Consequently, appeal (Case No.9 of 2000) under Section 30(3) of the Act was filed by “Khazana” before the Settlement Officer, who after affording opportunity of hearing to the parties decided the matter on 18.7.2000. It was observed that out of Khasra No.252 in possession and ownership of “Khazana”, “Lachaman” had been allotted 0.03.75 Hectares to meet good his deficiency in the area and share. Since the share of allotment was not in dispute and the parties apparently agreed for a compromise formula, the Settlement Officer also recorded as under :- “It is stated by the appellant that if deficiency of the respondent is to be made good the same may kindly be done from Khasra No. 226 and entire Khasra No. 252 be allotted to him. The respondent is agreeable to this statement but raises objections that on Khasra No.226 the appellant has raised one house and temple after inspecting this Khasra number. On spot, if allotment is done he has no objection.” Consequently, he remanded the matter back to the Consolidation Officer with the direction “to inspect Khasra No. 252 and 226” and from the corner make the allotment as per convenience and deficiency. Acting on the aforesaid direction, on 30.10.2000 the Consolidation Officer, in the presence of the parties carried out the inspection of Khasra Nos. 252 and 226 and in terms of its order dated 6.6.2001 decided the remand case No. 23/2001 in which he observed 100 % entitlement of “Khazana” on Khasra Nos. 248, 249 and 252 and the first right of entitlement of “Lachaman” on Khasra Nos. 250, 258 and second right on Khasra No. 234, was allotted to the parties. The Officer found that 4 on Khasra No. 248 and 226 new, it was not possible to allot land as “Khazana” had constructed a house on the same and, therefore, out of Khasra No. 238 land was allotted to “Lachaman”. The position of allotment pursuant to the orders of Consolidation Officer stood as under:- “Name of right holder Excluded Included Old New Ordinary Std. Old New Ordinary Std. 1.Khajana Ram s/o Shyama, Khewat No.9/6, Jamabandi 1994-95 249min 238min 0.3.84 001.184 252 241 00.376 00.1.41 Lachaman s/o Shayama, Khewat No.9/6, Jamabandi 1994-95 252min 241 0.3.76 001.41 249min 238/1 000.384 001.44” Aggrieved by the same, “Lachaman” filed appeal (No. 18/2001) before the Settlement Officer under Section 30(3) of the Act. After affording opportunity to the parties, the Settlement Officer in terms of his order dated 3.5.2002 reversed the order passed by the Consolidation Officer and reverted the position as it stood in terms of order dated 17.5.1993 passed by the Consolidation Officer. While doing so, it was so observed that on personal inspection of the spot carried out in the presence of the parties, it was found that Khasra No. 249 allotted to “Lachaman” by the Consolidation Officer vide order dated 6.6.2001, was in fact “digphot and of poor quality”. 5 The matter did not rest there as “Khazana” filed an appeal (No. 32/2002) under Section 30(4) of the Act, which on merits was dismissed by the Deputy Director, Consolidation, in terms of its order dated 30.6.2003. He thereafter, filed Revision Petition (No.180/2003) under Section 54 of the Act and the Director, Consolidation of Holdings, in terms of order dated 1.10.2005 allowed the petition by upholding the order dated 6.6.2001 passed by the Consolidation Officer in remand case No.23/2001. In effect the order dated 3.5.2002 passed by the Settlement Officer was set aside. Thereafter, “Lachaman” filed CWP No.170 of 2006, which was allowed by the learned Single Judge, who in terms of his judgment dated 16.6.2007, set aside the order dated 1.10.2005 passed by the Director, Consolidation of Holdings, and restored the order dated 3.5.2002 passed by the Settlement Officer. Hence the present appeal. The State of Himachal Pradesh enacted the “Act” to provide for the consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings in the State and for the assignment or reservation of land for common purpose of the village. The legislative intent is to prevent fragmentation and to redistribute all or any of the land in an area notified by the State Government, between every tenure holders entitled thereto in such a way as would make the areas for the time being held as such, more compact. For this purpose, the State Government is enjoined with the duty of preparation of statement of plots and tenure holders and also prepare a consolidation scheme to subserve the purpose and the object of the Act. Under Section 22(2)(a)(b) of the Act, “every tenure 6 holder is, as far as may be allotted land in the block in which he holds the largest parts of the holdings”. The total land in question is just about 376 yards and unfortunately the parties have been litigating since 1993. The controversy has to be put to rest at some stage and the roller coaster ride must end. It is true that order passed by the Director, Consolidation of Holdings, is unreasoned and the learned Single Judge could have set aside the order and remanded the matter back to him for assigning the reasons, but we have seen that on merits there is no error in the order passed by the learned Single Judge. It is true, as has been argued by Mr. Kuthiala, that allotment of about 376 yards of land out of Khasra No.252 belonging to “Khazana” has resulted into the fragmentation, but, however, it is equally true that in terms of agreement recorded on 18.7.2000 no balance land was left out of Khasra No. 226 which could have been allotted to “Lachaman”. It is also equally true that on spot inspection the Settlement Officer found that Khasra No.249 so allotted by the Consolidation Officer in remand proceedings was digphot and of poor quality. It is also evident that the scope of investigation in remand proceedings pursuant to remand order dated 18.7.2000 was very narrow and the Consolidation Officer, in our view, as has been rightly held by the learned Single Judge, could not have travelled beyond the same. In fact while doing so he has exceeded his jurisdiction by allotting land to “Lachaman” out of Khasra No.249, as the same was not in issue at all. “Khazana” had offered to give land out of Khasra No.226 and “Lachaman” 7 had conditionally agreed to the same and for this limited purpose the matter was remanded back. Importantly, in the appeal filed by “Khazana” it has no where been pleaded that findings of fact recorded by the Settlement Officer in the presence of the parties with regard to Khasra No. 249 being digphot and of poor quality, was either biased or incorrect. Therefore, much reliance cannot be placed on the revenue entries to substantiate this finding to be incorrect. The inspection had taken place in the presence of the parties and no objection was ever raised by them. From the record, it is evident that “Khazana” was allotted Khasra Nos. 248, 249 in toto and only out of Khasra No.252, (approximately) 376 yards of land was allotted to “Lachaman”. This was so done as on Khasra No.226, “Khazana” had constructed a house and not enough land was left to be allotted to “Lachaman”. The record also reveals that Khasra Nos. 250, 258 stood allotted to “Lachaman” as first right and Khasra No. 234 as second right. The Apex court in Dr M.Ismail Faruqui and others vs. Union of India and others, (1994) 6 SCC 360, while construing the provisions of the Acquisition of Certain Area at Ayodhya Act, 1993 which contained the expression, “so far as may be” held that the said expression is indicative of the fact that all or any of the provisions contained under Sections, 4,5,7 and 11 of the said Act may or may not be applicable to the transferee under sub-section (1). Further in Dr. Partap Singh and another vs. Director of Enforcement, Foreign Exchange Regulation Act and others, AIR 1985 SC 989, where the Court was dealing with the provisions of Section 37(2) of the 8 Foreign Exchange Regulation act, 1973, containing the expression “so far as may be” has held that such expression has always been construed to mean that provisions may be generally followed to the extent possible and should be interpreted to mean that broadly the procedure relating to search as enacted in Section 165 of the said Act shall be followed. The Settlement Officer was conscious of the legislative intent and only after seeing the ground reality, taking into account unforeseen circumstances and after adjusting the equities the order was passed. While implementing the scheme, in accordance with the provisions of the Act, the legislative intent “as far as may be” shall take in its sweep some fragmentation amounting to little inconvenience caused to few tenure holders. After all adjustment of shares, area and land is the purposive intent of the legislatures. The expression “as far as may be”, gives an inbuilt discretion and flexibility to the authorities to adjust the shares and the land. The expression “may” is not mandatory but in fact is directory. The language is couched in a manner which gives discretion to the authority to fulfill the object and the purpose of the enactment within the parameters laid down by the statute. The discretion of course has to be guided with rationality, reasonableness and on sound basis. The word may”, in our view, is not inter-changeable with the expression “shall”. It is reasonably susceptible to the permissive meaning rather than mandatory or prohibitory meaning. The judgments referred to and relied upon by the learned counsel for the parties, in Devi Dass and others vs. State of Himachal Pradesh and others, 1992 (2) Sim. L.C. 134, Smt. Parsino Devi and others vs. The State of H.P. and others, 1994 (Suppl.) Sim.L.C. 1, Smt. Mehli Devi 9 vs. State of H.P. and others, Lekh Ram and another vs. State of H.P. and others, Latest HLJ 2007 (HP) 1031, Ram Bali vs. State of U.P., (2004) 10 SCC 598 and Jagvir Singh and others vs. State (Delhi Admn.), (2007) 5 SCC 359, have been considered by us. We have perused the record carefully while arriving at our conclusion. To our mind, there is neither any violation of Scheme nor the provision of the Act. We do not find any reason to interfere with the same. The appeal is accordingly dismissed. (Jagdish Bhalla), Chief Justice 2008 (Sanjay Karol), (C) Judge. 10