IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.839/2005 Reserved on: 9.4.2009 Decided on:19.6. 2009 Dharam Singh and others. …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. Ajay Sharma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy. Advocate General for respondents No.1 and 2. Mr. Parveen Kumar, Advocate for respondents No.3 to 8. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the predecessor-in-interest of respondents No.2 to 8 Sh. Parmanand was owner of old Khasra No.804, 797/1 and 809/1. This land was in possession of Dhungal, predecessor in interest of the petitioners as tenant. An application in form LR-V was filed by the owner Sh. Parmanand for redemption of land as per the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and the rules framed 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 thereunder. The Land Reforms Officer passed order on 28.1.1977. Khasra No. 797/1, 804/1 and 809/1 were ordered to be resumed by Sh. Parmanand and with regard to remaining land; the proprietary rights were conferred upon the predecessor-in-interest of the petitioners Sh. Dhungal. Sh. Dhungal preferred an appeal against the order dated 28.1.1977. He dismissed the appeal on 17.3.1981. However, it appears from the record that Sh. Dhungal preferred another appeal before the Collector, which was decided in his favour on 12.12.1984. The respondent Smt. Kaushlya Devi preferred an appeal No. 82/85 before the learned Divisional Commissioner against the order dated 12.12.1984. The appeal was accepted by the learned Divisional Commissioner on 18.2.1986 (Annexure P-2). The respondents preferred revision petition under section 54 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 on 8.10.2003 before the Director Consolidation of Holdings Himachal Pradesh. He allowed the revision on 9.1.2004. Mr. Ajay Sharma, Advocate has strenuously argued that the consolidation started in village Darbathu in the year 1989 and thereafter draft scheme was prepared which was published as per section 28 and thereafter it was confirmed under section 29 and re-partition took place in the year 1990. In other words, his submission is that the matter had attained finality in the year 1990 after the re-partition and after the preparation of revenue records under section 31 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (hereinafter referred to as ‘the Act’ for brevity sake) and handing over of possession under section 32 of the Act. Mr. R.K. Sharma, learned Senior Additional Advocate General and Mr. Parveen Kumar, Advocate have supported the impugned order passed by the Director Consolidation of Holdings, Himachal Pradesh. Mr. 3 Parveen Kumar has further contended that after the orders passed by the Director Consolidation of Holdings on 9.1.2004 the possession was handed over to his clients on 13.6.2005. I have heard the learned counsel for the parties and perused the record carefully. A bare perusal of the records reveals that the proprietary rights were conferred upon the predecessor-in-interest of the present petitioners. The proceedings went up to the Divisional Commissioner. He passed the order on 18.2.1986 whereby the appeal preferred by the respondents was allowed. In the present case, the consolidation started in the revenue village in the year 1989. A bare perusal of the Act reveals that the draft scheme is to be prepared and the same is to be published under section 28. Thereafter in case ‘no objections’ are received under sub-section (1) of section 28 within 30 days of the publication of the amended draft scheme published under sub-section (2) of section 28, as the case may be, the Settlement Officer (Consolidation) has to confirm the scheme submitted by the Consolidation Officer under section 29 of the Act. The parties as per sub-section (2) of section 29 are permitted to file objections to the amended draft scheme published under sub-section (2) of section 28. Thereafter there is a detailed procedure for re-partition in accordance with the scheme under section 29. Any person aggrieved by the re- partition is permitted to file written objections within 30 days of the publication before the Consolidation Officer. Any person aggrieved by the order of the Consolidation Officer under sub-section (2) of section 30 may file appeal under sub-section (3) of section 30 before the Settlement Officer within one month. A person aggrieved by the order of the Settlement Officer (Consolidation) under sub-section (3) of section 30 may within sixty days of that order appeal to the Director of Consolidation of 4 Holdings. Thereafter the Consolidation Officer is required to prepare a new revenue records in accordance with the provisions of Chapter-3 of the Act. The Consolidation Officer under section 32 has to allow the persons affected by the scheme of the consolidation to enter into possession of the lands forthwith or from such date, as the case may be, specified by him. It is apparent from the scheme of the Act discussed hereinabove that on every opportunity commencing from publication of draft scheme up to entering into possession, the parties can file objections. In the case in hand, the re-partition as per the reply filed by the respondent-State has been carried out in the year 1990. Thereafter there is presumption that the revenue records were prepared under section 31 and the parties were put to possession of the new holdings as per section 32 of the Act. The private respondents had preferred the revision petition before the Director Consolidation of Holdings on 8.10.2003. It was decided on 9th January, 2004. It is true that there is no period of limitation prescribed under section 54 of the Act. However, it is settled law by now that in those enactments also where there is no period of limitation prescribed, the same has to be done within a reasonable period of two to three years. The Director Consolidation of Holdings has unsettled the things which stood settled in the year 1990. He could not over look the delay and laches while deciding the revision on 9.1.2004. There is a delay of more than thirteen years in the present case, which has not been explained satisfactorily in the proceedings pending before the Director Consolidation of Holdings. The expression “may at any time” has to be given a purposive/contextual interpretation. It has to be construed that “may at any time” will only mean within a reasonable period and not after a period of more than thirteen years. 5 Their Lordships of the Hon’ble Supreme Court in Ibrahimpatnam Taluk Vyavasaya Collie Sangham versus K. Suresh Reddy and others, (2003) 7 SCC 667 have held that expression “at any time” has to be read contextually and reasonably and not in an unguided or arbitrary manner. Their Lordships have held as under: “9. 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 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 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 words "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 suo motu power could be exercised reckoning or starting from a particular date advisedly and contextually. Exercise of suo motu power 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 6 considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as Land Ceiling Act). Hence, it appears without stating from what date the period of limitation starts and with what period the suo motu powers 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 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 dictionary meaning of 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. 12. The learned single Judge has referred to and relied on various decisions including the decisions of this Court as to how the use of the words 'at any time' in sub-section (4) of Section 50-B of the Act should be understood. In the impugned order the Division Bench of the High Court approves and affirms the decision of 7 the learned single Judge. Where a statute provides any suo motu power of revision without prescribing any period of limitation, the power must be exercised within a reasonable time and what is 'reasonable time' has to be determined on the facts of each case.” Similarly, their Lordships of the Hon’ble Supreme Court in State of Himachal Pradesh and others versus Rajkumar Brijender Singh and others, (2004) 10 SCC 585 while interpreting the expression ‘at any time’ occurring in section 20 (3) of the Himachal Pradesh Ceiling on Land Holdings Act, 1972 have held that the order of the Financial Commissioner stood vitiated after having been passed after a long lapse of 15 years of the order which has been interfered with. Their Lordships have further held that even if no fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. Their Lordships of the Hon’ble Supreme Court have held as under: “6. We are now left with the second question which was raised by the respondents before the High Court namely the delayed exercise of the power under sub-section (3) of Section 20. As indicated above, the Financial Commissioner exercised the power after 15 years of the order of the Collector. It is true that sub-section (3) provides that such a power may be, exercised at any time but this .expression does not mean there would be no time limit or it is in infinity. All that is meant is that such powers should be exercised within a reasonable time. No fix period of limitation may be laid but unrea- sonable delay in exercise of the power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power suo motu action could be exercised. For example in this case, as the appeal had been withdrawn but the Financial 8 Commissioner had taken up the matter in exercise of his suo motu power, well it could be open" for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn some time in March 1976. The learned counsel for the appellant, was not able to point out such other special facts and circumstances by the reason of which it could be said that exercise of suo motu power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo motu in a suitable case even though an appeal preferred before lower appellate authority is withdrawn may be by the State. Thus the view taken by the High Court is not sustainable. But the order of the Financial Commissioner suffers from vice of the exercise of the power after unreasonable lapse of time and such delayed action on his part nullifies the order passed by him in exercise of power in sub-section (3) of Section 20.” The matter is required to be seen from another angle. The order was passed by the Land Reforms Officer on 28.1.1977. These have attained finality as discussed hereinabove on the basis of the orders passed by the Divisional Commissioner on 18.2.1986. The petitioners were given the proprietary rights under the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. They have come into possession of the respective area of which the proprietary rights were conferred upon them. Their rights were further determined when the 9 proceedings under the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 commenced in the year 1989 and culminated in the year 1990. This position could not be altered by the order passed by the Director Consolidation of Holdings on 9.1.2004 after a period of more than thirteen years. In view of the observations made hereinabove, the order of the Director dated 9.1.2004 suffers from the vice of exercise of the powers after lapse of reasonable time and the same is declared null and void. In a recent judgment in Pune Municipal Corporation versus State of Maharashtra and others, (2007) 5 SCC 211, their Lordships of the Hon’ble Supreme have held that even though there is no period of limitation but revisional authority must consider extent of delay and whether revision was filed within reasonable time. Their Lordships have held as under: “26. The learned counsel for the appellant-Corporation is also right in contending that the Revisional Authority ought to have considered the fact that such jurisdiction was invoked by the petitioner after several years. It may be recalled that the first appeal filed by the land-owners was not against an order under Section 8 of the Act but against the notification under Section 10 of the Act, which was dismissed on the ground of maintainability. Likewise, the first revision filed in the year 1990 was dismissed as not maintainable in 1991. 27. Now it is true that no period for revision is provided in the Act. It was, therefore, submitted on behalf of the land-owners that when the Legislature did not think it fit to prescribe period of limitation, such power can be exercised 'at any time' and no Court by a 'judicial fiat', usurp legislative power and prescribe period of limitation. It is no doubt true that the statute does not fix period of limitation within which revisional 10 power should be exercised under Section 34 of the Act. The Legislature, in its wisdom, has not fixed period of limitation as it had empowered the State Government to exercise revisional power suo motu. In our judgment, however, only in such cases i.e. where the period of limitation is not prescribed that the concept of 'reasonable time' can be invoked and power must be exercised within such period. 28. In this connection, it would be profitable to refer to a leading decision of this Court in State of Gujarat v. Patel Raghav Natha & Ors., (1969) 2 SCC 187. In that case, an application was filed by the land-owner under Section 65 of the Bombay Land Revenue Code, 1879 for converting agricultural land to non-agricultural use. The permission was granted. The Municipal Committee, however, objected to such permission and the Commissioner, in purported exercise of revisional power under Section 211 of the Code, set aside the order passed earlier. When the matter reached this Court, it was contended by the owners, that though Section 211 did not prescribe period of limitation, revisional powers ought to be exercised within a reasonable time. 29. Upholding the contention and considering the scheme of Sections 65 and 211 of the Code, this Court stated: "The question arises whether the Commissioner can revise an order made under s. 65 at any time. It is true that there is no period of limitation prescribed under s. 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. It seems to us that s. 65 itself indicates the length of the reasonable time within which the Commissioner must act under s. 211. Under s. 65 11 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the 'Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late". (emphasis supplied) 30. The law laid down in Patel Raghav Natha has been reiterated by this Court in several cases. We do not intend to burden our judgment with all those cases. We may only state that broad contention of the land owners that when no period of limitation is prescribed, revisional jurisdiction can be exercised at any time cannot but be rejected. If the law prescribes period of limitation, the action must be taken within such period. But where the law does not prescribe limitation, the Court would import the concept of 'reasonable time'. We may, however, hasten to add that what is the length of the reasonable time would depend upon the facts and circumstances of each case and no rule of universal application can be laid down. [See also Shailesh Jadavji Varia v. Sub-Registrar, Vadodara & Ors. (1996) 3 Guj LR 783 (FB)].” 12 Accordingly, in view of the aforesaid reasoning, the petition is allowed. Annexure P-4 dated 9.1.2004 and consequential order Annexure P-5 dated 13.6.2005 are quashed and set aside. It is declared that the parties shall be put back to their respective possession on the basis of the scheme framed under the Act and the re-partition which has taken place in the year 1990 on the basis of which they were put in possession as per section 30 (2) of the Act. There shall, however, be no order as to costs. 19.6. 2009 (Rajiv Sharma ), J. *awasthi*