In the High Court of Punjab and Haryana at Chandigarh LPA No. 186 of 2008 (O&M) Date of decision: March 10, 2009 Shish Pal and others ... Appellants Vs. Director of Consolidation, Haryana and others ... Respondents Coram: Hon'ble Mr. Justice Uma Nath Singh Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.R. Hooda, Advocate for the appellants. Ms. Ritu Bahri, DAG, Haryana. Mr. Ashok Aggarwal, Sr. Advocate with Mr. Piyush Sharma, Advocate for the respondents No.2 to 4. A.N. Jindal, J Even after delay of 27 years, on the application of Shiv Charan son of Ghanshyam appellant-respondent (herein referred as 'the appellant'), under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short “the Act”). The Director, Consolidation of Holdings, vide order dated 10.8.1983, while accepting the said application remanded the matter to the Consolidation Officer with a direction that he should allot tenancy area to the petitioners (respondents herein) under the Shamlat Deh after applying proportionate cut to all the right holders of the village in accordance with the provisions of the scheme and after affording an opportunity of being heard to all concerned. The said order, Annexure P-4, has been challenged by the respondents No.2 to 5 by way of writ petition, which was accepted and the order Annexure P-4 was quashed. LPA No. 186 of 2008 (O&M) -2- Undisputed facts are that consolidation proceedings in the village Sirsika took place in the year 1952 and re-partition proceedings under Section 21 (1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short “the Act”) were published in the year 1952. None including the appellants or their predecessor challenged the re-partition proceedings up to the year 1979. Abruptly, after a long pause of 27 years, Shiv Charan (now deceased) moved application in the year 1979. It would be worth while to mention here that no document showing his possession as tenant over the disputed land, prior to the consolidation, has been placed on record. The Shiv Charan himself has admitted that he was ejected from the suit land on a prayer made in that behalf by Rumal son of Chajju in the year 1973. Still no prayer was made by Shiv Charan for allowing him an area afresh under Shamlat Deh till the year 1979. No application of any kind for condonation of delay was filed by Shiv Charan before the Director Consolidation, Haryana for condoning the delay of 27 years. Records further reveal that apart from the area measuring 32 kanals comprised in Killa Nos. 9/9, 10, 13 and 14, which was allotted to him, he is shown in possession of another area of 32 kanals comprised in Killa Nos.8/6, 7, 8 and 9 under Roshan son of Bhola son of Harnam which is vividly clear from the copy of the jamabandi for the year 1954-55 (Annexure P-2). The area allotted to the petitioner under Roshan son of Bhola son of Harnam was ultimately transferred in his name through the court decree and qua the said area, he ultimately became the owner. It appears that after he was ejected from the land in question, he moved this belated application at the time when the circumstances appeared favourable to him. It is not the sweet Will of Shiv LPA No. 186 of 2008 (O&M) -3- Charan as to move the application under Section 42 of the Act whenever he thought it appropriate. The delay of 27 years in filing the application does not stand explained. The Apex Court while discouraging such application observed in case Gram Panchayat Kakran vs. Addl. Director of Consolidation and another, J.T. 1997 (8) S.C. 430 that though no limitation is prescribed under Rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, for filing the application under Section 42 of the Act, yet, the competent authority cannot entertain an application filed under that Section after a long lapse of time. The relevant observations expressed by Hon'ble the Apex Courts reads as under :- “Even where no period of limitation is prescribed, the party aggrieved is required to move the appropriate authority for relief within a reasonable time. In fact, this court in the case of Gram Panchayat, Village Kanonda Vs. Director, Consolidation of Holdings, JT 1989 (4) SC 357 : (1989 Suppl. (2) SCC 465) dealing with Rule 18 itself, said that when no limitation is prescribed for an application under Section 42 dealing with confirmation of the scheme, the application should be made within a reasonable time and this question will have to be decided on the facts of each case. In that case, the delay of about 3 years and 8 months in filing an application under Section 42 by the Panchayat was held to be not unreasonable. In the present case, however, the delay is of 40 years. We have tried to ascertain from the 2nd respondent whether there is any explanation for this unreasonable and inordinate delay. But no satisfactory explanation appears to be there for this inordinate delay in making the application under Section 42.” LPA No. 186 of 2008 (O&M) -4- From the conjoint reading of Section 42 of the Act and Rule 18, it is clear that application could be filed within a period of six months, but in the present case, the application under Section 42 having been filed after delay of 27 years is not maintainable. While taking the case on merits, it may be observed that status of Shiv Charan (now deceased) was only that of tenant, therefore, order of Director Consolidation was against the mandate of the scheme itself, because he being a tenant was liable to be ejected from Shamlat Deh prior to the consolidation and was allotted area under two land owners namely Roshan son of Bhola son of Harnam and Rumal son of Chajju in accordance with the mandate of the scheme. Merely because he was ordered to be ejected by the competent court from the part of his tenancy area, which he held as tenant under Rumal son of Chajju, it cannot be said that either the provisions of scheme under the Act were not followed or there was illegality or irregularity committed by the Consolidation Committee under the Act. We have examined the order passed by the learned Single Judge and the same is shorn of any defect or illegality warranting interference at our end. Resultantly, finding no merit in this appeal, the same is dismissed. (Uma Nath Singh) (A.N. Jindal) Judge Judge March 10, 2009 deepak