IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 4490 of 1987 DATE OF DECISION : 24.01.2011 Gram Panchayat of village Kandhargarh .... PETITIONER Versus Addl. Director, Consolidation of Holdings, Punjab and another ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL Present: Mr. Amarjit Markan, Advocate, for the petitioner. Mr. M.L. Saini, Advocate, for respondent No.2. * * * SATISH KUMAR MITTAL , J ( Oral ) Gram Panchayat, village Kandhargarh, has filed this petition under Article 226 of the Constitution of India for quashing the order dated 13.10.1986 (Annexure P-5), passed by the Additional Director, Consolidation of Holdings, Punjab (respondent No.1 herein), in exercise of powers under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as `the Act'), whereby the petition, filed by respondent No.2 was accepted. In the consolidation proceedings, which took place in the year 1953, at the time of re-partition under Section 21 (1) of the Act, Sadhu Singh (father of respondent No.2) was allotted the land according to the CWP No. 4490 of 1987 -2- scheme, and he took possession of the land allotted to him. Thereafter, one Gurdial Singh filed an appeal under Section 21 (3) of the Act, which was decided on 14.8.1954 by ordering an exchange of area between the petitioner, Gurdial Singh and Sadhu Singh (father of respondent No.2). Against that order, Sadhu Singh filed an appeal, which was allowed by the Director, Consolidation of Holdings, Patiala, and the case was remanded to the Settlement Officer with the direction that deficiency of the parties be made good at the spot, after inspection of the land. Consequently, vide order dated 9.9.1955 (Annexure P-1), the Settlement Officer, Sangrur, made good the deficiency of Sadhu Singh. The petitioner and Sadhu Singh were fully satisfied with that order and accordingly, on 1.3.1965, mutation was sanctioned in favour of Sadhu Singh on the basis of the order dated 9.9.1955. On 26.2.1981, respondent No.2 and his brother Teja Singh filed a petition under Section 42 of the Act for implementation of the aforesaid order dated 9.9.1955. Vide order dated 13.5.1981 (Annexure P-2), the said petition was allowed and the deficiency of respondent No.2 was made good. Thereafter, on 2.6.1986, respondent No.2 again filed an application under Section 42 of the Act (Annexure P-3), for making good the deficiency of value of 3-1-6 bighas of land. Vide the impugned order dated 13.10.1986 (Annexure P-5), respondent No.1 accepted the application and observed that Sadhu Singh (father of respondent No.2) was entitled to 59-8-6 bighas of land, against which he was given only 56-11-0 bighas, thereby leaving the deficiency of 2-13-6 bighas, which is against the scheme. Accordingly, CWP No. 4490 of 1987 -3- while accepting the application, the matter was remanded to the Consolidation Officer, with a direction to make good the area of respondent No.2, after examining the record and hearing the parties. Learned counsel for the petitioner, while referring to the order dated 28.10.1953, passed by the Consolidation Officer, as well as the order dated 9.9.1955 (Annexure P-1), passed by Additional Director, Consolidation of Holdings, Patiala, argued that whatsoever deficiency in the land of the father of respondent No.2 was found, the same was made good vide order dated 9.9.1955 and all the parties, including the petitioner and the father of respondent No.2 were satisfied with the said order. Learned counsel further argued that even thereafter, in the year 1981, respondent No.2 along with his brother, again filed a petition under Section 42 of the Act, making the grouse with regard to some deficiency. The said petition was allowed and the deficiency, as alleged by respondent No.2, was made good. Thereafter, according to learned counsel for the petitioner, respondent No.2 filed another application, wherein the impugned order was passed. It is the argument of learned counsel for the petitioner that in the impugned order, neither any thing in detail was discussed nor the contentions urged and submitted in writing were considered. Learned counsel further argued that the petition filed by respondent No.2 under Section 42 of the Act after more than 30 years of the consolidation, was not maintainable, particularly when respondent No.2 and his father were aware of all the proceedings, including the details of the land, alleged to have been allotted to them under CWP No. 4490 of 1987 -4- the Act. On the other hand, learned counsel for respondent No.2 has argued that vide the impugned order, after accepting the claim of respondent No.2, respondent No.1 has remanded the matter and thereafter, the Consolidation Officer has passed order dated 4.5.1987 (Annexure P-6). It is an admitted position that till date, the order passed by the Consolidation Officer on the basis of the impugned order has not been implemented. Learned counsel for respondent No.2 could not point out any ground for filing the petition after such a long delay. After hearing learned counsel for the parties, I am of the opinion that the impugned order, passed by respondent No.1 is not sustainable in law. The Hon'ble Supreme Court in Gram Panchayat, Kakran v. Addl. Director of Consolidation, 1997 (8) SCC 484 has held that Rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as `the Rules') prescribes remedy of objections against any illegality or irregularity in finalisation of the consolidation scheme. Even if there is no limit prescribed under the statute, an application under Section 42 of the Act could have been filed by the aggrieved person within a reasonable time. In the said case, the petition was being filed after a delay of 40 years and the application was held to be not maintainable. In the present case also, there is no explanation by respondent No.2 for filing the application after a long delay, even when he was aware of all the facts and the alleged deficiency CWP No. 4490 of 1987 -5- and was earlier approaching the authorities, as is clear by the aforesaid two orders. If he was aggrieved against the order of re-partition, he should have filed the appeal and availed the remedy against the said order within the limitation, as prescribed under Rule 18 of the Rules, which he has not done. Thereafter, at the belated stage, respondent No.1 could not have exercised the power under Section 42 of the Act and passed the impugned order. In view of the above, this petition is allowed and the impugned order dated 13.10.1986 (Annexure P-5), passed by respondent No.1 is set aside. January 24, 2011 ( SATISH KUMAR MITTAL ) ndj JUDGE