CWP No.1761 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.1761 of 2007 Date of Decision: 30.9.2010 Naginder Singh and another .....Petitioners Vs. Director, Land Records, Punjab, Jalanadhar and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Harsh Bunger, Advocate for the petitioners. Mr. C.S. Brar, DAG, Punjab, for respondent no.1. Mr. V.K. Shukla, Advocate for respondent no.2. .... RAJIVE BHALLA, J (Oral) The petitioners pray for issuance of a writ in the nature of Certiorari for quashing the order dated 23.8.2006, passed by the Director, Land Records, Punjab, Jalandhar, dismissing the petitioners application for making a correction in the revenue entries recorded during consolidation proceedings. Counsel for the petitioners submits that their application for correcting the revenue record was dismissed by the Director,Land Records, Punjab, on the ground of inordinate delay. Section 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 (hereinafter referred to as `the Act') does not prescribe any period of limitation, as it confers plenary powers upon the government to rectify CWP No.1761 of 2007 2 errors committed, during consolidation proceedings, at any time. It is further argued that as old Khasra Nos.781 and 780, were Gair Mumkin Mardian (graveyard and cremation ground), owned by the proprietors, before consolidation, the new Khasra Nos.80 and 81, should have been recorded as the ownership of the proprietary body, instead of Jumla Mushtarka Malkan. It is further submitted that the Gram Panchayat, has constructed a water tank and is likely to use this land for a community centre. It is prayed that the impugned orders be set aside and the Director, Land Records, Punjab, should be directed to rectify the record, so as to reflect the ownership of the proprietors. Counsel for the Gram Panchayat, however, submits that consolidation proceedings concluded in the year 1955. The petition filed by the petitioners was hopelessly time barred and in the absence of any explanation for this delay, the Director, Land Records,Punjab, rightly dismissed the application. It is further submitted that as the land is recorded as Jumla Mushtarka Malkan, it vests in the Gram Panchayat. I have heard counsel for the parties and perused the impugned order. Admittedly, consolidation proceedings concluded in the year 1955. The application for correction of the revenue record prepared during consolidation proceedings was filed in the year 2003 i.e. after a delay of 48 years. The application is bereft of any explanation for this delay. It is true that Section 42 of the Act, confers a plenary power upon the State Government, to entertain at any time, a petition for correction of errors made during consolidation proceedings. The words “at any time” appearing in Section 42 of the Act, however, do not afford a CWP No.1761 of 2007 3 license to approach the Director, after four decades. It would be appropriate, at this stage, to reproduce a relevant extract from a judgment of this Court reported as Gram Panchayat of Village Ban Bhaura, Tehsil Malerkotla V. Additional Director, Consolidation of Holdings, Punjab and others, 2004(3) R.C.R. (Civil) 298:- "10. The question whether a petition under Section 42 can be filed at any time and the authority constituted under the Act can entertain the same ignoring the long delay between the finalisation of the consolidation proceedings and filing of the petition was considered by the Supreme Court in Gram Panchayat v. Director consolidation of Holdings, 1989(2) Suppl. SCC 465; 1989 (20 RRR 554 (SC) and Gram Panchayat, Kakran v. Additional Director of Consolidation and another, 1997 (8) SCC 484; 1997(4) RCR (civil) 498 (SC). In the second decision, the Supreme Court referred to the earlier decision and observed:- "This, however, cannot be understood as enabling the party which is aggrieved by the repartition to make an application under Section 42 after an unreasonably long lapse of time. 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 V. Director, CWP No.1761 of 2007 4 Consolidation of Holdings 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. The only contention which has been urged before us by Respondent no.2 relates to the application of Rule 18 and the period of limitation prescribed therein not being applicable where the challenge is to the consolidation scheme and repartition. But even if Rule 18 is not directly attracted, an application which is made after such inordinate delay ought not CWP No.1761 of 2007 5 to have been entertained. It is also contended by the 2nd respondent that the appellants have no locus standi to challenge the order of the Additional Director of Consolidation in a writ petition because the land in question continue to remain in the name of the proprietary body. He drew out attention to Rule 16(ii) of the said Rules. Rule 16(ii), however, quite clearly provides that the management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary party and the panchayat shall have to utilise the income and the benefits of the estate or estates concerned. Even before the Additional Director, the appellants were made a party-respondent. This contention, therefore, has no merit." 11. By applying the ratio of the aforementioned decisions to the facts of this case, I hold that the impugned order suffers from an error of law, inasmuch as, respondent no.1 entertained and allowed the petition filed by respondent Nos.3 to 6 without considering the issue of delay of 29 years and concurrent finding recorded by the civil Courts that they were not the owners of the land in question." CWP No.1761 of 2007 6 In view of the inordinate and unexplained delay in approaching the Director, the petition was rightly dismissed. The precise grievance of the petitioners is that ownership of the land in dispute should be recorded in the name of the proprietors. A relevant extract of the consolidation scheme reads as follows :- “Partition of area falling under Bairoon Phirni – (Page 152) The right-holders/proprietors of khasra no.781, Gair Mumkin Graves (Mardian) have desired that this area be kept at the same place and under their ownership because in this place there are graves (Samadhis) and they consider this place as sacred/important, hence this Khasra No. is being fixed as it is, in the same shape and under their ownership. Similarly, khasra no.1132 Min, Gair Mumkin Graves (Mardian) which is presently comprised in khasra no.82 will also be kept as Gair Mumkin Graves (Mardian) under former/earlier proprietors.” A perusal of above extract reveals that Khasra no.781 was used for common purposes, namely; Gair Mumkin Mardian (graveyard and cremation ground). The new Khasra Nos. are recorded as the ownership of “Jumla Mushtarka Malkan” i.e. land owned by proprietors but managed and controlled by the Gram Panchayat. It, therefore, belies reason as to why the petition was filed. The prayer for rectification of revenue entries, recorded in consolidation proceedings, appears to be a mere eye wash. The dispute, in CWP No.1761 of 2007 7 essence, arises from certain construction raised by the Gram Panchayat on this land. The petitioners should have, therefore, approached a court of competent jurisdiction, with respect to the construction raised or to be raised by the Gram Panchayat. The writ petition is, therefore, dismissed, with liberty to the petitioners to seek adjudication of any right that may have in the land in dispute by approaching an appropriate forum. No order as to costs. 30.9.2010 (RAJIVE BHALLA) GS JUDGE