Mansa Ram vs State Of Haryana And Ors. on 3 September, 2001

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Punjab-Haryana High Court
Mansa Ram vs State Of Haryana And Ors. on 3 September, 2001
Author: G Singhvi
Bench: G Singhvi, M Kumar


JUDGMENT

G.S. Singhvi, J.

1. This is an appeal against order dated 2.12.1992 passed by the learned Single Judge vide which he dismissed C.W.P. No. 9100 of 1987 filed by the appellant for quashing orders dated 27.7.1984, 12.10.1984, 14.11.1987 and 4.9.1987 passed by the authorities constituted under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, ‘the Act), as applicable to the State of Haryana.

2. The facts of the case are that Consolidation Scheme for village Matenhail, Hadbast No. 141, Tehsil Jhajjar, District Rohtak (now District Jhajjar) was framed in the year 1962. Shri Dariya Singh (respondent No.2 in the writ petition) filed an application under Section 42 of the Act for correction of the scheme by asserting that Khasra No.562 (old Khasra No.2756) belonged to him and his family members and the names of Des Ram etc. had been wrongly recorded in the column of ownership. On being directed by the Additional Director, Consolidation. Consolidation Officer, Rohtak made spot inspection and recorded the following observations:-

“On seeing the record it was found that plot No. 562 of which the previous khasra No. 2756 has been reserved in the Consolidation Scheme at page 250 in the name of Mahanta son of Udmi, jugti, Daryao Singh, Attar Singh, Manphool sons of Khem Chand 1/2 share and Nishan Tulsi son of Surja half share.”

XX XX

This position continues till jamabandi for the year 1977-78. In this jamabandi, the entry about Jeewan, Net Ram Des Raj, Maaman in equal share of 1/5 is wrong, when in the Missal Haqiat and Jamabandi for the year 1967-78, the names of Manphool etc. were required. This mistake can be got corrected through Fard Badar. The jamabandi for the year 1951-52 and Khatauni Istemal before consolidation operation was seen. In that the total area in Khewat No. 450 and Khasra nos. 2755, 2756 2/(2-10)2/(5-18) 2957, 2958 is 10B-1B. This is joint 1-2 (0-3) Khewat of 720 shares in which Tehri etc. entered in Khewat No. 423-90 shares, Dhara etc. in Khewat No. 417-30 shares, Balwant etc. Khewat No. 418-30 share, Hari Singh Khewat No.421-75 shares, Smt. Rattan Kaur, Khewat No.422-75 shares, Jugli Ram Khewat No.428-30 shares, Deep Chand etc. Khewat No.429-30 shares, Ram Sarup Khewat No. 431 -45 shares, Beg Raj etc. Khewat No.444-45 shares, Natha etc. Khewat No.447-135 shares, Partap etc. Khewat No. 432-45 shares and Dhir Singh etc. Khewat No.438-90 shares are owners. In this Khewat Tulsi Ram and his sons Des Ram etc. are nowhere shown as owners and Nanhta son of Udmi is also not the owner. The appellant has produced one sale deed by which he has purchased land measuring 0-7 out of 1/16th part of former Khewat No. 450. In these numbers, the area of khasra Nos. 2757 and 2756 is OB-5B and out of this, the share of the applicant’s area conies to OB-6B. Out of the other Khasra Nos. 2957 and 2958 his share of the area comes to only OB-B-1. The appellant states that he had taken possession of the area only in Khasra Nos. 2755 and 2756.

In the presence of the aforementioned right holders, spot inspection of plot No.562 was done. All the right-holders who have attended corroborate this fact that the appellant has been in possession of this plot from the beginning after the consolidation proceedings and even now, they are in possession. In the previous record also, the opposite party Tulsi Ram or his sons Des Raj etc. and Smt. Chhote etc. and Nanhta are not the owners. It appears that their names have been written in the scheme by mistake. The correction is called for. The report be submitted before the Additional Director, Consolidation Haryana.”

Thereafter, the matter was referred to the Chief Executive Officer, Haryana Khadi and Village industries Board, Panchkula to whom powers of the State Government under Section 42 of the Act had been delegated. After hearing the parties, the officer concerned allowed the application of Dariya Singh vide order dated 27.7.1984. The extracts of that order are reproduced below :-

“I have heard counsel for both the parties and have also examined the relevant record. The persons mentioned at Sr.No.3 above are owners of Khasra No. 2756 of “which plot No.562 is a part. Only those right-holders who are original share-holders of khasra No.2756 should be share-holders of plot No.562. The learned Counsel for the respondents argued that the respondents are also share-holders of plot No. 562. After hearing the parties and examining the relevant record I have come to the conclusion that only the persons mentioned at Sr. No. 3 above should be shareholders of plot-No. 562. The case is remanded to the consolidation officer, Rohtak with the direction that the persons mentioned at Sr. No. 3 be made share-holders of plot No.562 and other persons mentioned at Sr. Nos. 1 and 2 and 4 above should be deleted from the partnership of plot No. 562. If these persons who are deleted from the partnership of plot No.562 are 10 be made share-holders then they may be made share-holder in any other land where they are share-holders.”

3. In compliance of the direction given by the Chief Executive Officer, Consolidation Officer, Rohtak passed order dated 12.10.1984 for making necessary amendments in the scheme. The relevant extracts of that order are also reproduced below:-

“Record examined and appellants heard. Das Ram and Manphool etc. have been served through notice for today’s appearance. But they have not turned up. Hence ex parte proceedings is taken against them. After examining the record, the ownership of plot No. 562 according to Jamabandi for the year 1963-64 was as under:-

“Des Ram etc. 1/2 Udmi etc. 1/5th Manphool etc. 1/5th and Smt. Chotan etc. 1/10th and is entered in the jainabandi for the year 1977-78, Des Ram etc. 1/2, Jiwan etc. 1/5th Manphool etc. 1/5th, Manphool etc. 1/10th. The correction of the share of Manphool etc. 1/10th has been made vide Farad Baddar No.2 and of Smt. Chhottan But the correction of Jiwan etc, 1/5th has not been made. This correction is also to be made through Farad Baddar by making ownership of Jugti Ram etc. 1/5th share. And since been given to Manphool etc. hence now the ownership entry of plot No.562 is left as Des Ram etc. 1/2, Manphool etc. 2/5th and Smt. Chhoten etc. 1/10, According to the remand order this entire plot has been given to Manphool etc. and in lieu thereof, area is to be withdrawn from Manphool etc. and is to be given to the parties, adjoining to Chhottan etc. Killa out of which Chhotan etc. are given area. But the Kurrah of the Des Raj etc. is in killa No. 193/8-13-4 and there is no area of appellant alongwith this area Kurrah is for of place and there is no Bachat Land alongwith this land hence under compulsion separate land from the Kurrah amendments have been made because none is present from Des Ram etc. and Chhottan etc. hence they may be informed regarding the amendments:-

No. Sumar

Name of the Owner Withdraw

Given

1.

Manphool etc. 76/16 Khewat No.711 0-S

East

2.

des Ram etc. M.-Khewat No. 1274

76/16 0-8Marias

3.

Manphool etc. 287/8/1 Khewat No. 1278 South

0-2

4.

Smt. Chhottan etc. -M. Khewat No. 1277

278/8-1 0-2 South

5.

Des Ram etc. M. Khewat No. 2/5thManphool etc. M. 562(0-16)
Khewat no. 1276 2/05 Smt. Chhottan etc. No. Khuwat 1277 1/10

 

6.

Manphool etc. 9/10 Mundraja Khewat No. 711 Manphool etc.
1/16 M.D.No. 1276

-562 0.16

After making the above amendments the remand case is accepted. The file may be consigned to record room after completion.”

4. Des Ram challenged the order of the Consolidation Officer by filing an appeal which was dismissed by the Additional Director, Consolidation, Rohak vide order dated 14.11.1986. Thereafter, Des Ram, Smt. Dhanno and appellant-Mansa Ram filed an appeal under Section 42 of the Act. The same was dismissed on 4.9.1987 by the Additional Director, Consolidation of Holdings, Haryana with the following observations:-

“According to the record of this case Sh. Kailay before passing the order had also obtained a report from the Consolidation Officer, Rohtak who had informed him that from the very beginning the land in question had been in possession of the petitioners (now respondents). In these circumstances modifications of the scheme by necessary implication is made out. In this behalf reliance can be placed on the Full Bench judgment, Har Dayal Singh v. Director Consolidation of Holdings, PLJ 1970 page 132 the relevant part of which is as under:-

“In the wake of the decision in Johri Mal’s case by the Supreme Court on the nature of the order made by the Director in that case, the opportunity of hearing that is to be given in accordance with the proviso to Section 42 of the Act is adequate and proper if in the case of variation or amendment of a scheme, the provisions of the scheme are present to the mind of the authority attending to the case under Section 42 of the Act and the arguments before such an authority leads to a claim of opposition in regard to a certain relief to be granted so far as the scheme is concerned. The matter may come before such an authority as directly raised by the parties before it as it happened in Johri Mal’s case. It may arise where it has been a matter of consideration and discussion in the orders of the authority below. It will obviously arise if one party is seeking relief contrary to the provisions in the scheme, or if no party complains against an order having been made against its interest contrary to the provision of the scheme. Once the particular provision of the scheme verified or modified is present to the mind of such an authority and in relation to it, then that has to be taken as modification of variation of the scheme even though in an individual case as happened in Johri Mal’s case.

It has also been contended by Sh. Balhara that Ex. X. In which the reservation of plot No. 562 had been recorded for the petitioners and respondents was an important part of revenue record and cannot be changed by the Consolidation Officers. This document was prepared during the consolidation proceedings and as such it is a part of consolidation record which Sh. Kailay as competent to modify which he had done after getting the report from the Consolidation Officer as referred above.

Another point which deserves to be noted here is that the order dated 27.7.1984 passed by Sh. Kailay had not been challenged by the petitioners before any competent authority. Neither any part of the order of Sh. Kailay has been left unimplemented by the Consolidation Officer and settlement Officer Consolidation of Holdings, Rohtak nor have they transferred the limits in respect of that order, therefore, no illegality or impropriety on the part of Consolidation Officer or the Settlement Officer consolidation of Holdings is established. The application is, therefore, dismissed. However, as desired by the counsel for the petitioners status quo shall be continued for one month from the date of communication of this order.”

5. The appellant challenged orders dated 27.7.1984, 12.10.1984 and 4.9.1987 in C.W.P. No. 9100 of 1937 which was dismissed by the learned Single Judge.

6. Sh. Amit Jain argued that the Chief Executive Officer, Haryana Khadi and Village Industries Board had committed a serious illegality by entertaining the time barred application filed by Sh. Dariya Singh and the learned Single Judge has also erred in declining to entertain in appellant’s prayer for quashing of the patently illegal orders passed by the authorities constituted under the Act. He pointed out that the names of the appellant and others had been recorded in the jamabandi of 1977-78, which establish their title over the land in question, but this important piece of evidence has been completely ignored by the authorities concerned and by the learned Single Judge resulting in a serious prejudice to the appellant.

7. Sh. U.S. Sahni supported the impugned order passed by the learned Single Judge and prayed that the appeal may be dismissed.

8. We have given serious thought to the arguments of Sh. Amit Jain, but have not felt persuaded to agree with him that the order of the learned Single Judge suffers from an error of law warranting interference. The report of the Consolidation Officer (An-nexure R2 with the written statement) shows that Khasra No. 2756 (now plot no. 562) had been reserved in the Consolidation Scheme in the names of Mahanta son of Udmi, Jugti, Daryao Singh, Altar Singh, Manphool sons of Khem Chand 1/2 share and Nishan Tulsi of Surja 1/2 share. This position continued till the jamabandi for the year 1977-78 when the names of Des Ram etc. suddenly figured in the column of ownership. The Consolidation Officer noted that in the jamabandi for the year 1951-52, the total area of Khewat No. 450 and Khasra Nos. 2755,2756,2957 and 2958, the names of Tulsi Ram, Des Ram etc. had not been shown. The spot inspection of the site showed that Dariya Singh etc. were in possession of the plot. On that premise, he concluded that the names of Des Ram etc. had been recorded by mistake which warranted rectification. After hearing the parties, Chief Executive Officer directed Consolidation Officer to carry out necessary amendments. The latter did the needful and after independently examining the entire record, the Assistant Director, Consolidation, Rohtak and the Additional Director, Consolidation of Holdings, Haryana found that the correction made by the Consolidation Officer did not warrant interference. The learned Single Judge noted the arguments of the counsel for the writ petitioner (appellant herein) that in the jamabandi for the year 1977-78, his client had been shown as owner, but rejected the same by making the following observation :-

“It shall be seen from the narration of facts as have been given as also the order passed by the Consolidation Officer dated 12.1.1984 which came into being after inspection of record and site as also report Annexure R-2/1 that plot No. 562 prior to consolidation was in the ownership of respondent No. 2 and his brothers, names of whom have already been given above. There, thus, crept a clerical error while recording the ownership of the persons with regard to foresaid plot in the consolidation proceedings. This is a pure finding of fact which does not deserve to be set aside, not only for the reason that such a finding can to be set aside but from the records that are made available, it is found that such was the position, Mr. Mahajan, however, draws support from Annexure P-4 which is copy of jamabandi for the year 1977-78 to contend that the aforesaid finding of fact is incorrect. After going through jamabandi Annexure P-4, I find no substance in the submission made by Mr. Mahajan. It shall be immediately found out from the jamabandi aforesaid that the same pertains to post consolidation period and with a view to otherwise, reference has to be made to pre-consolidation record.”

9. The learned Single Judge also rejected the argument that the mistake in the Scheme could not be corrected at a belated stage and held as under:-

“The other submission of Mr. Mahajan is that such a mistake could not be corrected as it amounted to change in the consolidation scheme which was not permissible. He also contends that much an action taken after 20 years from the date when the entries came into existence would be highly belated and in any case no application for condonation of delay was filed in the present case and that being the position, the matter should have been rejected having become barred by limitation. All the arguments raised by Mr. Mahajan have to be repelled as in Hardial Singh and Ors. v. Director of Consolidation of Holdings, Punjab Jullundhur and Ors., (1970)72 P.L.R. 167 (F.B.) of this court held that a scheme of consolidation can be amended under Section 42 of the Act of 1948 in an individual case and the amendment need not necessarily be actual rewriting of a particular provision of the scheme as also that it is proper and adequate compliance with the proviso to Section 42 of the Act of 1948, if change or amendment or variation in a Scheme of consolidation is made after the authority making the same had before its mind the particular provision of the scheme to be thus affected and the arguments of the parties in respect of the effect of the change. Once the matter is present to the mind of the authority exercising power under Section 42 of the Act of 1948 and after considering the relevant provision of the scheme, it gives a decision or makes an order, that is sufficient compliance with the proviso to Section 42 of the Act of 1948 and no more is required. Further, it shall be made out from Section 43 of the Act of 1948, that a clerical or arithmetical mistake in a scheme made or an order passed by any officer, under the Act arising from any accidental slip or omission can be corrected at any time by the authority concerned either of its own motion or on the application of any of the parties. In Jagtar Singh v. Additional Director, Consolidation of holdings, Jullundur and Anr., (1984) P.L.R. 364 (F.B.), a Full Bench of this Court held that the bar of limitation under Rule 18 does not apply to those petitions under Section 42 in which the legality or validity of a scheme prepared or confirmed or repartition made is challenged.”

10. We entirely agree with the learned Single Judge and hold that the orders impugned in the writ petition did not suffer from any error apparent warranting interference by the High Court in exercise of its certiorari jurisdiction under Article 226 of the Constitution of India.

11. A perusal of the averments made in the written statement filed on behalf of the private respondents shows that in the jamabandi for the year 1951-52, Jugta, Manphool, Dariya Singh and Attar Singh were recorded as owner of various khasra numbers including khasra No. 2756 which they had purchase on 31.7.1951 from Partap son of Jawhara. The names of Des Ram etc. did not figure in the jamabandi till 1977-78. The possession of the land in question was also with Dariya Singh etc. Therefore, the findings recorded by the concerned authorities constituted under the Act that the names of Des Ram and the appellant had been mentioned in the Scheme by mistake cannot be held as vitiated by any legal error warranting interference by this Court.

No other point has been argued.

12. For the reason mentioned above, the appeal is dismissed.

Sd/- M.M. Kumar, J.

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