IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.2119 of 2007. Date of decision: 01.06.2011 Birbal Sharma & Others … …Petitioner Versus Director, Consolidation of Holdings … …Respondents and Others Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No For the Petitioners: Mr.Ramakant Sharma, Advocate. For Respondent No.1: Ms.Shubh Mahajan, Deputy Advocate General. For Respondent No.2: Mr.Ashok Sharma, Advocate. Dev Darshan Sud,J. The petitioners are aggrieved by the order dated 4.12.2006 passed by the Director Consolidation (Annexure P-6) on a revision under Section 54 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, having been preferred by the petitioners herein. 2. Revision petition No.98/2006 was instituted before the Director of Consolidation of Holdings on the allegations that village Tikka Baranda, Mauza Jungle, Tehsil and District Hamirpur, H.P. was brought under 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes 2 the Consolidation Operation in the year 1984-85 and that there has been a gross violation in the Consolidation Policy. It is pleaded that instead of allotting land of Khasra No.161 to the petitioners, the Scheme has been fragmented by illegally breaking up this Khasra number into Khasra Nos.111 and 112 and wrongly allotted the land to the respondents before him, namely, the present respondents. One submission made is that there is a house existing on suit land, that is the new Khasra No.111 and 112, which has been in existence for the last 80 years. It is ancestral house and could not be formed subject of consolidation. A prayer was, therefore, made that land comprised in Khasra Nos.112 and 113, as per Jamabandi for the year 1990-91, in the Tikka aforesaid may be re-allotted to the petitioners. The Director heard the parties and report was summoned from the Assistant Land Consolidation Officer, Hamirpur after spot verification which was taken on the record. After calling for the report from the Consolidation Authority, the Director has passed the following orders:- “Sahayak Bhu-aktrikaran Adhikari, Hamirpur ki report se spashat hai ki khasra number 161 savak ke bane hall Khasra number 137 par kabza vadi ka paya gaya jabki Khasra number 136 tadadi 0-00- 24 par prativadi ne dukan tameer kar lee hai. Babakat tark-vitark vadi paksh ke adhivakta ne Khasra number 161 sayak salam bapas lene ki mang ki va agreh kiya ki Khasra number 138 hall rakva 0-00-24 jisme 3 prativadi ne dukan bana li hai va sadak ke kinare vakya hai yadi na diya ja sakta ho to iske badla mein char guna rakva prativadi ke Khasra number 163 se sadak ke kinare diya jave. Dono pakshon ke tark-vitark sunne, report Sahayak Bhu-aktrikaran Adhikari, Hamirpur ka avlokan karne ke uprant main is nishkarsh par pahuncha hoon ki number Khasra 161 savak kisam gair mumkin abadi jo vadi ka malkiyati tha va mutavik report Sahayak Bhu-aktrikaran Adhikari aaz bhi vadi ka purana makan mouka par kayam hai vadi ko hi diya jana chahiye tha. Kewal is Khasra number ke bane hall Khasra number 138 rakva 0-00-24 jisme hall hi mein prativadi ne dukan bana li hai ke badla mein vadi ko prativadi ke Khasra number 163 se sadak ke sath lagta utna hi rakva diya jana uchit prateet hota hai. Sahayak Bhu-aktrikaran Adhikari, Hamirpur, ne apani report mein likha hai ki Khasra number 143 hall rakwa 0-00-35 ko vadi ka malkiyati hai lekin kabza prativadi ka vatour angan (sic) mouka par paya gaya. Ataha yeh Khasra number prativadi ko diya jana uchit hai. Report Sahayak Bhu- aktrikaran Adhikari Anshik tour par sweekar ki jakar Khasra number 137 ka rakva vajriya rahat rakva intkar 0-00-26 ki bajaye 0-00-36 karne va Khasra number 136-137-163 min tadadi 0-00-24 vadi ko dene va Khasra number 143 tadadi 0-00-35 prativadi ko dene bara niman tarmeem ke aadesh diye jate hain.” Transliteration: “From the report of the Assistant Land Consolidation Officer it is clear that Khasra No.161(old) which has been 4 assigned as Khasra No.137 is in the possession of the petitioners, whereas Khasra No.136 measuring 0-00-24 is in possession of the respondents who have constructed a shop thereon. Counsel for the petitioners has argued that Khasra No.161(old) be returned to the petitioners and submitted that Khasra No.138 (present) measuring 0-00-24 on which the respondents have constructed a shop is adjoining the road. If this cannot be returned to the petitioners then in lieu of that the petitioners should be allotted four times area of this land from Khasra No.163 near the road. After hearing the submissions made by counsel for both the parties and also considering the report of the Assistant Land Consolidation Officer, I have arrived at a conclusion that Khasra No.161(old) described as “Gair Mumkin Abadi”, which was in the ownership of the petitioners and according to the report of the Assistant Land Consolidation Officer there is an old house of the petitioners, should be allotted to the petitioners. I deem it fit and proper that in lieu of this land, out of Khasra No.138 (present property) measuring 0-00-24 on which the respondents have constructed the shop, the petitioners should be allotted equal land adjoining the land from Khasra No.163. The Assistant Land Consolidation Officer, Hamirpur, has written in his report that Khasra No.143 (present) measuring 0-00-36, is in the ownership of the petitioners but has been found in the possession of the respondents as a courtyard. Therefore, this itself in the fitness of things that this Khasra number be allotted to the respondents. Report of the Assistant Land 5 Consolidation Officer is accepted in part and Khasra No.137 …. …. …. …. …. ” 3. Thereafter, the allotment, which has been made, has been tabulated. This order has now been challenged in this petition. 4. The writ petitioner challenges the order on the ground that on Khasra No.112 the ancestral house of the petitioners exists and therefore, its possession requires to be restored to them. It is also pleaded that Khasra Nos.112 and 113 are re-allotted to the petitioners and some portion of Khasra No.113, which has been allotted to respondent No.1, may be re- allotted to the petitioner. 5. A number of points have been urged by learned counsel appearing for the petitioners in support of his contention. Before I advert to that aspect, I must note that the powers of the Director have been invoked after a period of more than 19 years. I also note that the order which has been passed, also takes note of the concession made on behalf of the petitioners that if it is not possible to allot a particular portion of land, as asked for in the revision petition, an alternate arrangement qua allotment be made. The decision of the Director is based on the report of the Assistant Land Consolidation Officer. 6. In these circumstances, what I find is that: 6 (a) The petitioners herein having obtained an order on consensus on the submissions made before the Director. (b) What is more important is that if this order is set aside, the possession as it existed immediately before the consolidation operation is closed in 1987, would revive. 7. In both the situations the power under Article 226 cannot be exercised. Having consciously consented to a particular arrangement the petitioners cannot plead illegality. More importantly, proceedings closed in 1987 cannot be reopened after a lapse of about 24 years which would invariably lead to multiplicity of proceedings between various parties. One more reason is that the petition is actually barred by delay and laches for which there is no explanation on the record. In any event, it needs no reiteration that any adjudicatory power including revisional power has to be exercised within a reasonable time irrespective of the fact as to whether the provision itself states that the power can be exercised at any time. This matter is no longer res integra. The Supreme Court in Loku Ram vs. State of Haryana and Others, 1999 (3) PLR (Vol.123) 590), while considering a similar provision of revisional powers being exercised under Section 18(6) of the Haryana Ceiling on 7 Land Holdings Act, 1972, which vested powers in him to exercise powers suo motu at any time, held:- “2. However, in 1989, an application was presented before the Financial Commissioner under Section 18(6) of the Act praying for invoking his suo motu powers to look into the legality of the orders after calling for the records of the Collector. The Financial Commissioner, after hearing both parties, passed an order on 17.2.1994 setting aside the order of the Collector on the basis that the same was vitiated by patent illegality. An objection was raised before the Financial Commissioner that he should not exercise the revisional power after a lapse of seven years from the date of the order of the Collector. He over ruled that objection holding that when an order was vitiated by illegality, he could look into the same under Section 18(6) of the Act. The Financial Commissioner disagreed with the Collector and set aside his order. 3. The order of the Financial Commissioner was challenged before the High Court in a writ petition but the High Court refused to interfere with the same. The present appeal before us is against that order of the High Court. 4. Section 18(6) of the Act reads thus:- “Section 18(6)-Notwithstanding anything contained in the foregoing sub- sections, the Financial Commissioner may suo motu at any time call for the record of any proceedings or order of any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings 8 or order, and may pass such order in relation thereto as he may deed fit.” 5. No doubt, the section uses the expression “at any time” but it cannot be indefinite. The power has to be exercised within a reasonable time. While construing the expression “at any time”, this court in State of Gujarat v. P. Raghav, AIR 1969 SC 1297, has stated the law thus:- “11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.” 6. Section 18(2) of the Act prescribes a period of 15 days for filing an appeal and Section 18(4) prescribes a period of 30 days for filing a revision before the Commissioner. When the two sub-Sections prescribe a very short period of 15 and 30 days respectively, it will be unreasonable to hold that the Financial Commissioner has unlimited power to entertain a revision after a lapse of several years. 7. The test prescribed by this Court in Raghav’s case has been ignored by the Financial Commissioner in the present case. His order does not disclose any reason to hold that a period of nearly seven years is reasonable on the facts of the case. Nor has the High Court gone into the question and decided whether the power has been exercised on the facts and circumstances within a reasonable period. 9 Hence we allow the appeal and set aside the order of the High Court. The order of the Financial Commissioner is also set aside. The order of the Collector dated 18.6.1982 is restored. No costs.” 8. I need not cite any more precedent. In CWP No.235 of 1992, titled: Kashmir Singh (deceased) through his L.Rs. Chain Singh and others vs. State of Himachal Pradesh and others, decided on 3rd September, 2001, this Court has upheld this proposition. 9. In these circumstances, I do not deem it a fit case in which powers under Article 226 of the Constitution of India should be exercised. This petition is accordingly dismissed. It will be open to the parties to approach a Civil Court to have their rights adjudicated in case so permitted by law. No order as to costs. June 1, 2011. (Dev Darshan Sud) (aks) Judge.