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Chhaju Ram v. State Of Haryana And Ors
Judicial Opinion — Structured Summary
Factual and Procedural Background
Chhaju Ram (the petitioner) was a right-holder in village Mittha Thal (tehsil Bhiwani; previously in district Hissar). Consolidation operations produced a confirmed scheme on 5 May 1962 and repartition was completed; records were consigned. In that repartition the petitioner was allotted Khasra Nos. 264, 265 and 270 and given possession.
In 1969 the irrigation/Canal authorities allegedly commenced unauthorised digging through those three Khasra numbers. The petitioner filed Civil Writ Petition No. 2303 of 1969 challenging the digging. The State filed an affidavit stating no digging had been undertaken and no digging would occur until the land was acquired. After an appearance in that earlier writ, this Court on 22 September 1969 ordered that the petitioner was competent to restore any dug land to its original position and to seek damages against the Department or any interfering individuals.
The petitioner again cultivated the disputed land. In October 1969 the Gram Panchayat of Mittha Thal filed an application under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (the Act) seeking modification of the consolidation proceedings to provide for an extension of the Gujrani canal minor which it alleged had been inadvertently omitted from the consolidation scheme.
The delegated authority (Assistant Director) decided the matter by order dated 11 June 1970 (annexure 'B'), concluding that the canal minor was already in existence through the three disputed Khasra numbers and ordering changes to allotments: Khasra Nos. 264, 265, 270 were withdrawn from the petitioner and he was allotted Khasra No. 260 of equal area. The petitioner challenged annexure 'B' by the present writ petition under Articles 226 and 227 of the Constitution of India.
Legal Issues Presented
- Whether the State (via a petition under Section 42 of the Act) could, after the lapse of seven years from the final repartition, modify allotments on the basis that a canal minor already existed through land previously allotted to the petitioner.
- Whether the Assistant Director's factual finding in annexure 'B' (that the canal minor was already in existence and water was running through the petitioner's three Khasra numbers) was sustainable in view of prior affidavit statements and the earlier proceedings.
- Whether a petition under Section 42 filed against a repartition finalized under Section 21(2) is subject to the six-month limitation prescribed by Rule 18 of the Rules framed under the Act (and, if so, whether the late petition is barred by limitation).
Arguments of the Parties
Petitioner's Arguments
- The repartition had been completed in 1962 and records consigned; any petition under Section 42 had to be filed within six months, but the application was filed seven years later and was therefore incompetent and time-barred.
- The State (and Canal Department) had previously represented in the earlier writ (C.W.P. 2303 of 1969) that no digging had been done and no canal existed through the petitioner's land, and that any work would proceed only after acquisition. The impugned order annexure 'B' rests on an erroneous factual premise that a canal minor already existed and water was running through the petitioner's khasras, contrary to the earlier affidavit and stand before this Court.
Respondent's / Authority's Arguments (as recorded)
- The Assistant Director's order (annexure 'B') recorded that the canal minor already existed through the disputed Khasra numbers and that change in allotment was warranted to protect the existing watercourse.
- Respondent No. 3 relied on the Division Bench decision in Haqiqat Singh v. Addl. Director, Consolidation of Holdings, Punjab, Chandigarh (AIR 1981 Punj & Har 204), arguing that where a petition under Section 42 is filed against repartition the limitation in Rule 18 may not apply in all circumstances—particularly as interpreted in that Division Bench decision. It was urged that Rule 17 and the proviso to Rule 18 limit the bar of limitation to cases where a specific order under Sections 21(3) and 21(4) is impugned.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Haqiqat Singh v. Addl. Director, Consolidation of Holdings, Punjab, Chandigarh, AIR 1981 Punj & Har 204 | Held by a Division Bench that in certain factual situations (e.g., where a right-holder was not provided a path to his qurrah in the scheme or repartition) the limitation in Rule 18 would not operate to bar a petition under Section 42. | The Court distinguished the facts of that case from the present matter (here the petitioner was allotted the disputed khasras in repartition). The Court further expressed the view that the Division Bench's reasoning was not correct as a broad proposition, but declined to refer the matter to a larger Bench because the petitioner succeeded on the separate factual ground (that the Assistant Director's finding was erroneous). |
| Rattan v. State of Punjab, (1965) 67 Pun LR 276 | Interpreted the procedural route for challenging repartition: that changes to final repartition under Section 21(2) are to be challenged by appeals under Sections 21(3) and 21(4) or by a Section 42 petition, implicating the time-limits in Rule 18. | The Court relied on this authority to support its view that an order of repartition finalized under Section 21(2) is an "order" within the meaning of Rule 18, so that a direct petition under Section 42 to upset such an order must be filed within six months of the Section 21(2) order; otherwise it is time-barred. |
Court's Reasoning and Analysis
The Court proceeded in two main analytical strands: (A) the factual correctness of the Assistant Director's finding that a canal minor was already in existence through the petitioner's land; and (B) the question of limitation under Rule 18 and the interplay of Sections 20 and 21 of the Act with Section 42.
A. Factual Finding Regarding the Canal Minor (primary ground of decision)
The Court examined the affidavit of the Divisional Canal Officer filed in the earlier writ petition (C.W.P. 2303 of 1969), which explicitly stated that "No digging was done by the Department in the land of the petitioner. The work will be started only along the approved alignment after acquiring the land of the petitioner." Read in context with other paragraphs of that affidavit and the stand taken before the Division Bench in the earlier proceedings, the Court concluded that there had been only a proposal for extension of the minor and that the canal minor did not pass through the petitioner's land nor was water running through it at the time of repartition.
The Assistant Director's order (annexure 'B') accepted reports that water was running through the petitioner's land; the Court found this to be contrary to the earlier affidavit and prior stance of the Consolidation Department before the Court. Given that no minor existed through the three disputed numbers when allotment was made to the petitioner, the Assistant Director's factual basis was erroneous. The Court held that, if the Canal Department wanted to extend the minor through the petitioner's land, the correct course would have been to acquire the land and pay compensation rather than re-opening and upsetting the repartition on the footing that the canal already existed.
Conclusion on this strand: the impugned order annexure 'B' was clearly erroneous on facts and therefore deserving of quashing on this ground.
B. Limitation and the Proper Interpretation of Sections 20–21, Rule 18 and Section 42
The Court analysed the consolidation scheme: Section 20 contemplates that after a draft scheme is confirmed, repartition begins under Section 21; Section 21(1) requires publication and obtaining advice of right-holders; publication of proposed repartition allows 15 days for objections under Section 21(2); the Consolidation Officer must pass an order confirming or modifying repartition under Section 21(2), which then becomes final subject to appeals under Section 21(3) and 21(4) and thereafter (potentially) a Section 42 petition to the State Government.
The Court reasoned that the order passed under Section 21(2) is an "order" within the meaning of Rule 18 of the Rules framed under the Act. Therefore, where a party chooses to impugn the order confirmed or modified under Section 21(2) by directly invoking Section 42 instead of pursuing appeals under Sections 21(3) and 21(4), such a petition under Section 42 must be filed within six months as prescribed by Rule 18; a petition filed after that period is barred by time.
The Court considered the Division Bench decision in Haqiqat Singh and its reading that the bar of limitation in Rule 18 applies mainly when a specific order under Sections 21(3) and 21(4) is impugned. The Court disagreed with applying that reading as a general proposition to the present facts, distinguishing Haqiqat Singh on its facts (there an entitled path had not been provided in the scheme or repartition). The Court further observed that the first proviso to Rule 18 simply excludes the time spent in obtaining certified copies where appeals have been filed, and does not support the broader exemption contended for by Respondent No. 3.
Even assuming (for argument) that Rule 18 would not bar a Section 42 petition against a Section 21(2) order beyond six months, the Court held that where a petition to reopen repartition is made after seven years, the State Government should not exercise jurisdiction under Section 42 unless grave facts or circumstances are shown. On the facts before the Court—most importantly the earlier clear stand that no watercourse existed through the petitioner’s land and that work would only proceed after acquisition—it would be an abuse of power to upset the repartition by recording an erroneous finding that the watercourse already existed. Accordingly, the petition under Section 42 after seven years was incompetent on this factual basis and the impugned order lacked jurisdiction.
Holding and Implications
Holding: The writ petition was allowed. The Court quashed the impugned order (annexure 'B') passed by the Assistant Director. The petition was allowed with costs; counsel fee awarded was Rs.100/-. (As recorded in the opinion: "Petition allowed.")
Implications:
- Direct effect: Annexure 'B' was set aside; the Assistant Director's attempted withdrawal of Khasra Nos. 264, 265 and 270 from the petitioner (and substitution by Khasra No. 260) was invalidated on the grounds stated by the Court.
- On limitation jurisprudence (as expressed by the Court): The Court articulated the view that an order of repartition finalized under Section 21(2) is an "order" within the meaning of Rule 18, and that a direct Section 42 petition impugning such an order would ordinarily have to be filed within the six-month period prescribed. The Court distinguished the Division Bench decision in Haqiqat Singh on its facts and expressed disagreement with treating that decision as establishing a general exemption, although it did not refer the matter to a larger Bench because the petitioner succeeded on the factual ground.
- No new broad precedent was expressly held beyond the case-specific rulings: The Court's decision rested primarily on the factual finding that the Assistant Director's premise (that a canal minor existed and water was running through the petitioner’s land at the time of repartition) was contrary to the earlier affidavit and prior stand of the authorities; the Court therefore quashed the order as being without jurisdiction. The opinion does state legal views on the applicability of Rule 18 to Section 21(2) orders, but it did not frame those views as creating a novel legal doctrine beyond resolving the present dispute.
Reported disposition in the opinion: "For the reasons recorded above, this petition is allowed with costs and the impugned order annexure 'B' is quashed, counsel fee being Rs.100/-. Petition allowed."
1. Chhaju Ram petitioner is a right-holder in village Mittha Thal, tehsil Bhiwani, which was previously in district Hissar but now in district Bhiwani. Consolidation operations were taken in that village and the scheme of partition was confirmed on 5th of May, 1962 and after completion of repartition, the records were consigned. In repartition, besides other numbers, the petitioner was allowed Khasra Nos. 264, 265 and 270 of which possession was given to him. In the year 1969, the irrigation authorities unauthorisedly started digging through the aforesaid three Khasra numbers allotted to the petitioner and, therefore, he filed Civil Writ No. 2303 of 1969 in this Court to challenge the same. After notice was issued to the State, an affidavit was put in, to the effect that no digging operations had yet been undertaken by the Department and that they had no intention of digging the same till the land was acquired. After the aforesaid affidavit was put in, the counsel for the petitioner pointed out that in fact some part of the land of the petitioner had been dug up and the Department may not interfere when he may try to fill the same and that the Department should pay compensation to the petitioner for digging his land. Keeping the entire matter in view, the following operative order was passed by this Court on 22nd Sept., 1969:--
"In view of the statement of the learned A. G., Haryana, the petitioner is fully, competent to restore the land to its original position, if any digging has taken place therein, and to seek his remedy for damages against the Department or the individuals who have interfered with his property."
The petitioner again brought the disputed portion under cultivation. A month after the order of this Court, somewhere in Oct., 1969, the Gram Panchayat of village Mittha Thal filed a petition under S. 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act), before the State Government for modification of the consolidation proceedings. In that application, it was pleaded that the extension of Gujrani canal minor should have been provided for in the consolidation scheme which had inadvertently been omitted and prayed that the same be provided now by passing a fresh order. The power of the State Government under S. 42 of the Act was delegated to an Assistant Director who considered the matter and by order dated 11th June, 1970, (annexure 'B') came to the conclusion that the canal minor was already in existence through the three disputed Khasra numbers which had been allotted to the petitioner besides other Khasra numbers and ordered many changes in the allotment of Khasra numbers. As regards the petitioner, Khasra Nos, 264, 265 and 270 were withdrawn from him and he was allotted Khasra No. 260 of an equal area. the petitioner again came to this Court in the present writ petition under Arts. 226 and 227 of the Constitution of India to impugn order annexure 'B'.
2. The grounds of attack pleaded by the petitioner are as follows:--
1. That the repartition was completed in the year 1962 and the records had been consigned and the petition under S. 42, which could be filed within six months, was filed after lapse of seven years and hence was not competent.
2. That it was categorically stated before this Court in the earlier writ petition that no digging operations were being carried out through the three Khasra numbers belonging to the petitioner and if the same would be required by the Canal Department it would be duly acquired. At that stage, it was never the case of the canal authorities that the minor was already in existence. Rather, a reading of the affidavit filed on behalf of the Irrigation Department in the earlier writ petition shows that there was some proposal for extension of the canal minor through the Khasra numbers which ultimately were allotted to the petitioner and, therefore, the very basis of the order annexure 'B' that the canal minor was already in existence and water was running through it is erroneous and as such the same cannot be sustained.
3. The second contention deserves to be declined first. The very basis of the order annexure 'B' is that the watercourse was running at site and the same should have been kept intact during consolidation. The learned counsel for the petitioner has strenuously urged that the aforesaid basis of the order annexure 'B' was wrongly assumed and was against facts and he has invited my attention to the file of C. W. P. 2303 of 1969 and particularly the affidavit by Divisional Canal Officer, Western Jamuna Canal. A reading of affidavit on the record of the aforesaid writ petition shows that a scheme had been prepared for the extension of the minor and the work of extension had not been started and it was categorically stated in Para 11 as follows:--
'No digging was done by the Department in the land of the petitioner. The work will be started only along the approved alignment after acquiring the land of the petitioner.' If the water-course was also in existence and water was running through it there was no question of carrying out any digging work after acquiring the land of the petitioner. The aforesaid quotation when read long with the other paragraphs of the affidavit of the Divisional Canal Officer, Western Jamuna Canal filed in the earlier writ petition, shows that there was a proposal for the extension of the minor through the land of the petitioner but the canal minor did not pass through the land of the petitioner nor water was running through it. Even before the Division Bench the stand taken by the learned Advocate General which is clear from the copy of the order ultimately passed (Annexure 'A') was that neither there was any canal in existence through the land of the petitioner nor any water was running through it. After the petitioner succeeded in earlier petition, it seems that some reports were obtained from the Consolidation Officer that the water was running through the land of the petitioner which fact is clearly contrary to the affidavit of the Divisional Canal Officer filed in the earlier writ petition as also the stand taken before this court in that case. Since no canal minor existed in the three disputed numbers when they were allotted to the petitioner, the question of re-opening the case after seven years did not arise on the ground that the canal minor already existed and water was running through it. Accordingly, I hold that the order of Assistant Director who passed order under S. 42 is clearly erroneous being against facts which were placed before this Court in the earlier writ petition. If the Canal Department wanted to extend the Canal Minor through the land of the petitioner as proposed the only course open was to acquire the land and after paying compensation to him to dig the canal minor. Hence the impugned order annexure 'B' deserves to be quashed on this ground.
4. Coming to the first argument of limitation, the learned counsel for respondent No. 3 has invited my attention to a Division Bench decision of this Court in Haqiqat Singh v. Addl. Director, Consolidation of Holdings, Punjab, Chandigarh, AIR 1981 Punj & Har 204 and has urged that whenever a petition under Section 42 is filled against repartition the provision of limitation contained in R. 18 of the Rules framed under the Act is not applicable. A reading of the facts of Haqiqat Singh's case (supra) shows that a right-holder had not been provided with a path to his qurrah during the preparation of the Scheme or in repartition and later a petition under S. 42 was filed long afterwards and on those facts it was held that the provision of limitation contained in R. 18 would not be applicable. The cases relied upon by the Division Bench also show that the applicant under S. 42 wanted a path to his qurrah which was not provided for either in the scheme or during the repartition. On facts, the present case is entirely different. Here, in repartition, the petitioner was provided the three disputed khasra numbers and, therefore, whosoever was aggrieved therefrom was entitled to challenge the same either by filling objections or under any of the Section 21(3) or 21(4) as also under Section 42 of the Act. this would bring me to the consolidation of Secs. 20 and 21 of the Act. A reading of S. 20 shows that after a Draft scheme is confirmed, a process of repartition starts under S. 21. Under S. 21(1) the Consolidation officer is to carry out the repartition after obtaining the advice of the land-owners of the estates which has to be published in the prescribed manner in the estate concerned. Within 15 days of the publication of the proposed repartition any aggrieved person can file objections under sub-section (2) before the Consolidation Officer who is to hear the same and pass such orders as he considers proper either by confirming or modifying the repartition. It would be very important to notice here that he will have to pass an order while confirming or modifying repartition whether objections were filed or not. Therefore, the proposed repartition made under S. 21(1) is finally to merge in an order to be passed by Consolidation officer under sub-section (2) which becomes final subject to further appeals under sub-section (3) and sub-section (4) by Settlement Officer or Assistant Director as the case may be who again have to pas orders confirming or modifying the repartition. This again would be subject to a petition under S. 42 to the State government. Therefore, if any change is to be got made in the final repartition made under S. 21(2) it can be in any of the ways, i. e., by filing further appeals under sub-secs. (3) & (4) or directly filing objection under S. 42, as held by this Court in Rattan v. State of Punjab, (1965) 67 Pun LR 276. Therefore, I am of the confirmed view that an order of repartition finalized under S. 21(2) would be clearly an order within the meaning of R. 18 and if against such an order instead of filing appeal under sub-section (3) and a further appeal under sub-section (4) if directly a petition is filed under S. 42, it can be done only within 6 months of the date of the order passed under S. 21(2) and any petition filed beyond that period would clearly be barred by time.
5. The matter of repartition of holdings or right-holdings of right-holders in the estate is of prime importance so far as Consolidation Act is concerned. That is why S. 21(1) provides that repartition should be proposed after obtaining the advice of the right-holders of the estate. After repartition is proposed, it is published in the estate in the prescribed manner vide which 15 days' time is allowed to the right-holders to fire objections to the proposed repartition. In case objections are not received, the Consolidation Officer shall pass an order confirming the repartition. And even in this eventuality it would be an order of the Consolidation Officer within the meaning of R. 18. If objections are filed then the same would be heard and after considering the matter either repartition would be confirmed as it is or would be modified as may be deemed just by the Consolidation officer. If an order passed under S. 21(2) is not to be considered an order but simply the repartition, then it would be open to any right-holder even after 10/20 years to file a petition under S. 42 to get the repartition changed and if such a cycle is to be allowed then after any number of years any right-holder would be entitled to file a petition under S. 42 and if the State Government under. S. 42 would be entitled to entertain the same without limit of time then the repartition made under S. 21(2) would never become final because an order under S. 42 would be maintainable at the instance of the other persons without respect to any times limit. Such a course was never intended under S. 42.
6. It is then urged by counsel for respondent No. 3 that on a reading of Haqiqat Singh's case (AIR 1981 Punj 204) (supra) Ss. 21(3) and 21(4) against repartition, such orders would be challenged under S. 42 within a period of six months provided in R. 18. But if matter of repartition rests under S. 21(2) only and no appears are filled under sub-section (3) and (4) then in that case petition under S. 42 can be filed without any limit of time. For that matter, he has invited my attention to the following portion of the judgment of the Division Bench (at p. 208):--
"Further R. 17 of the Rules which deals with the form of the application to be filed under S. 42 of the Act makes it abundantly clear that the bar of limitation has been created only in the context where a party impugns a specific order passed by any of the authorities under S. 21, sub-sections (3)and (4) of the Act. It is for this reason alone that in computing the period of six months, the time spent in obtaining the certified copies of the order passed under S. 21 is to be excluded. This is what has been provided for by the proviso to R. 18 itself."
The first proviso to R. 18 does show that if appeals are filed under sub-section (3) or sub-section (4) of S. 21 then in petition under S. 42 the time spent in obtaining the certified copies of the orders and grounds of appeal shall be excluded. Similarly if against an order confirming or modifying repartition under S. 21(2) a petition is directly filed under S. 42, to my mind, even then under the second proviso to R. 18, the appellant would be entitled to exclude the time spent by him in obtaining certified copy of order of Consolidation officer passed under S. 21(2) confirming or modifying the repartition. so first proviso to R. 18 does not in any way suggest to the contrary and so the decision of the Division Bench to my mind is not correct. Since the petitioner is succeeding in this case on the other point. I do not consider it proper to refer the case to a larger Bench and would content by saying what I have said above. Of course of facts the decision of the Division Bench is correct because in that case no order was sought to be set aside. There the appellant who was entitled to a path had not been provided one either in the Scheme or in repartition. So path could be provided under S. 42.
7. Even if it is assumed that R. 18 would not bar a petition before the State Government under S. 42 of the Act against an order passed under S. 21(2) beyond a period of six months, yet I would be of considered view that if a petition to have repartition re-opened or changed is made after seven years, I would certainly hold that the State Government would have no power to exercise its jurisdiction under S. 42 unless grave facts or circumstances are brought before it. As noticed on the other point in the earlier part of the judgment, the stand of Consolidation Department before this court in the earlier writ petition was that there was no water-course running through the fields of the petitioner nor it was intended to be dug through till the same was acquired. It would be clearly an abuse of its power now to upset the repartition by recording an erroneous finding that the water-course was already in existence and the water was running and that in repartition the same should have been protect. Therefore, on these facts as have been found before me, I am of the clear opinion that petition under S. 42 after the lapse of seven years would not be competent and the impugned order would clearly be without jurisdiction.
8. For the reasons recorded above, this petition is allowed with costs and the impugned order annexure 'B' is quashed, counsel fee being Rs.100/-.
9. Petition allowed.
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