IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.273 of 2003. Date of decision:28.03.2011 Suresh Kumar and Another … …Petitioners Versus State of H.P. & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioners: Mr.R.K. Gautam, Senior Advocate. For Respondents No.1 & 2: Mr.P.K. Sharma, Additional Advocate General. For Respondents No.3 & 4: Mr.H.K. Bhardwaj, Advocate. Dev Darshan Sud,J. This writ petition has been filed by the petitioners challenging the order passed by the Additional Director Consolidation holding that the house of respondent No.3 is situated on a part of the portion of Khasra No.133, while allowing the petition under Section 54 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1961 (hereinafter referred to as the `Act’), the Director ordered the correction of the records accepting the claim of respondent No.3. 2. The petitioners have filed this petition challenging the allotment made to the respondents. One of the primary grounds urged is that the consolidation 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 proceedings have taken place way back in 1972-1973 and the Director had no power under Section 54 of the Act to exercise these powers sue-moto after a period of more than 29 years and there is no explanation on the record as to why such petition was moved at that late stage. The second ground urged is that there is no order on the record which has been challenged. This Court, by its order dated 27.7.2007 holds:- “27.7.2007 Present: Mr.Anurag Sharma, Advocate, vice counsel for the petitioners. Mr.P.M. Negi, Deputy Advocate General, for respondents No.1 and 2. Mr.H.K. Bhardwaj, Advocate, for respondents No.3 and 4. Steps for the service of respondents 5, 6, 8 to 14 and 19 have not been taken by the petitioners despite several opportunities granted by the Registry. Similarly, steps for the substitution of the legal representatives of deceased respondents 17 and 18 have also not been taken despite the time and opportunities granted. On these grounds and for these reasons it is ordered that the aforesaid respondents shall not be summoned with all consequences. July 27, 2007 (V.K. Gupta),C.J.” 3. I am not entering into the details of the controversy of the factual situation for the order which I propose to pass. Adverting to Section 54 of the Act, all that I need say is that such powers can only be invoked for deciding the legality or proprietary of (a) order passed, (b) scheme prepared; (c) or confirmed; (d) or repartition made by any officer under 3 the Act. It is not an omnibus power conferred by the statute on the Director to start interfering with proceedings at the mere whims of the petitioners. I am unable to find anything on record to show that the order which was challenged despite the fact that learned counsel appearing for the respondents has taken me in detail through the petition filed before the Director Consolidation to urge with vehemence that it is only an illegality which has been corrected by the Director and more especially when one considers the fact that the report of the Consolidation Officer called for by the Director also supports the contentions of the respondents (petitioners before the Consolidation Officer). Learned counsel also relied upon the decision of the Supreme Court in Shamshad Ahmad and Others vs. Tilak Raj Bajaj (Deceased) Through LRs and Others, (2008)9 SCC 1, and State of A.P. vs. Prameela Modi (Smt) and Others, (2006)13 SCC 147 to urge that this ground cannot act as an appellate authority and re-appreciate the facts. The wide amplitude in which this submission has been made, cannot but be rejected. Statutory authorities are subject to the control of this Court and the orders passed are subject to the writ jurisdiction of this Court. What cannot be lost sight of is the fact that despite the so called finality attached to orders they are always subject to judicial review. 4 4. Learned counsel for the petitioners has submitted that the power can be exercised within a reasonable time. This proposition of law by now well settled and I am not going into those details. Not only this Court, but even the Supreme Court in such situations while interpreting the word `at any time’ has construed it to mean a reasonable period of about three years from the date of the order passed. As I note, I do not find from the pleadings or the material on record the date of the order passed, the scheme of partition or repartition etc. and despite the fact that I have tried my best to ascertain this fact, I have been unable to persuade myself that the record indicates the time when such an order was infact passed. The plea of illegality on the ground that the respondents had suffered some legal wrong is insufficient to invoke the provisions of Section 54 unless supported by the mandatory requirement of Section 54 and therefore, such plea also cannot be raised at any time after a period of more than 20/30 years of the proceedings having been completed. On the question of reasonability of time, all that I need say is that the case is now well covered by a number of judgments of the Supreme Court as also this Court. 5. However, what is important to notice is that the respondents, who have been impleaded as proforma respondents, but infact, whose interests are common with those of the contesting respondents, have not been 5 served. Learned counsel appearing for the respondents submits that they were necessary parties and any order passed by this Court would adversely affect their interest. 6. In Prabodh Verma and Others vs. State of Uttar Pradesh and Others, (1984)4 SCC 251, while dealing with question of necessary parties, the Supreme Court held:- “28. The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh case (Uttar Pradesh Madhyamik Shikshak Sangh vs. State of Uttar Pradesh, (1979) ALJ 178). Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties.- not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its 6 judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non- joinder of necessary parties. 41. … … … … … … … … … … … … … … … … 50. To summarize our conclusions: (1) A High Court ought not to hear and dispose of a writ petition under Art. 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them the High Court ought to dismiss the petition for non-joinder of necessary parties. (2) The Allahabad High Court ought not to have proceeded to hear and dispose of the Civil Miscellaneous Writ No.9174 of 1978 - Uttar Pradesh Madhyamik 7 Shikshak Sangh v. State of Uttar Pradesh, 1979 All LJ 178 - without insisting upon the reserve pool teachers being made respondents to that writ petition or at least some of them being made respondents thereto in a representative capacity as the number of the reserve pool teachers was too large and had the petitioners refused to do so, to dismiss that writ petition for non-joinder of necessary parties. … … …” 7. To similar effect is the judgment of the Supreme Court in Diwakar Shrivastava and Others vs. State of Madhya Pradesh and Others, 1984(Supp) SCC 214 holding:- “1. The appellants in the several appeals before us question the relaxation granted to candidates belonging to the Scheduled Castes and the Scheduled Tribes in regard to the minimum qualifying marks for admission into the medical colleges of the State of Madhya Pradesh. We are afraid we have to throw out these appeals on the preliminary ground that the persons likely to be affected if we agree with the submissions made on behalf of the appellants, that is, the candidates belonging to the Scheduled Castes and the Scheduled Tribes who have secured admission into the medical colleges as a result of the relaxation granted to them have not been brought before us by being properly impleaded as parties. We fail to see how the question of the legality or validity 8 of the relaxation granted in their favour can possibly be decided in their absence. Rules of natural justice apply as much to proceedings in Courts of law as to proceedings before authorities elsewhere. It may be that where a general question is involved and a large number of persons are concerned, the Court may, in appropriate cases, permit a few of them to be sued in a representative capacity or may consider them as sufficiently represented by a few who have been properly impleaded as parties. That is not the situation here. No effort has been made to implead any person likely to be affected as a party to the proceeding. All the appeals are liable to be dismissed on this short ground.” 8. Learned counsel appearing for the petitioner relied upon the decision of Col.D.D. Joshi and Others vs. Union of India and Others, (1983)2 SCC 235 to urge that it was a representative action and that in such a situation the absence of the respondents would not affect the case or the powers of this Court. The Court held:- “23. On behalf of the respondents, it was urged that if the contention of the petitioners is accepted which could compel the first respondent to re- settle the seniority list, those over whom petitioners and those similarly situated would score a march should have been impleaded as respondents and 9 in their absence, no relief can be given to them. We would not accept this contention for two reasons: (i) that the decision in General Manager, South Central Railways, Secunderabad etc., (AIR 1974 SC 1755) would permit us to negative the contention, this being not a case of individual claim or claim of seniority by one person against specified others, but a question of interpretation of a provision and which interpretation could be given because it would be binding on the Union of India, the presence of others is unnecessary. Union of India would have merely to give effect to the decision of this Court. Therefore, the absence of those who may by our interpretation be adversely affected in the facts and circumstances of the case need not be necessarily here and if the relief could have been granted, the same would not have been denied on the ground that proper parties were not before the Court. But the second reason why we should not examine this contention is that we are not inclined to grant any relief and the matter ends there.” 9. Reliance is also placed on the decision of Union of India vs. M.P. Singh, 1990(Supp) SCC 701, following this ratio. 10. Considering that the respondents who have not been served nor any attempt has been made to bring on record the legal representatives of the respondents who 10 were admittedly the co-sharers in the land having been impleaded as such before the Director, I do not intend to interfere in the proceedings of the Director, but not for the reasons urged by the respondents that the Director has power to interfere under any situation at any point of time. This petition is dismissed. No order as to costs. March 28, 2011 (Dev Darshan Sud) (aks) Judge.