TMI Blog1989 (10) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... passed (Scheme prepared or confirmed or repartition made) . Rule 18 was made in exercise of the rule making power by the subordinate legislation. After the amendment of Section 42 was made to exercise the revisional power by the State Govt. against the schemes prepared or confirmed or repartition made, correspondingly, no amendment to Rule 18 was made bringing within its ambit scheme prepared or con- firmed or repartition made in pursuance thereof. It is unnecessary to go into the question whether Rule 18 was declared to be intra vires or not. We proceed on the footing that Rule 18 is ultra vires and applies to the exercise of the revisional power by the State Govt. under Section 42. The omission to amend the Rule is an indication of the legislative animation that the limitation of six months prescribed under the Rule 18 would be confined to be ap- plicable only to any order passed by any officer under the Act. Thereby, by necessary implication the prescription of the limitation of six months for filing revision petition against the scheme prepared or confirmed or repartition made in pursuance thereof would stand excluded. It is no doubt true as contended for respondents that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys a question of fact depending upon the facts and circumstances in each case. When legisla- ture chose not to fix a particular period of limitation by judicial dicta it is not permissible to limit to a particu- lar period. The long lapse of time may be a fact for the revisional authority to take into account in the light of the facts and circumstances obtain- able in an appropriate case. No absolute or precise period of limitation could be predicated or laid. Take for instance the facts of this case. the previous Sarpanch is a benefici- ary from the impugned order and has chosen not to take steps to have the scheme impugned by filing a revision under Section 42 of the Act. The Gram Panchayat, being a juristic person, could not by itself except through the executive authority take. any action against the scheme prepared by the Consolidation Officer to assail its legality or proprie- ty by filing the revision. The revision petition was filed soon after the new Sarpanch came into office. Take another instance of a case where the officer concerned and the person benefitted, in confabulation, have made a scheme and repartition affected in pursuance thereto and kept it in dark to the kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict Rohtak. A Scheme of consolidation of holdings, hereinafter referred to as 'the Scheme', of the village was confirmed on 15.1.1974 under section 20 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), hereinafter referred to as 'the Act'. The Panchayat, there- fore, moved an application under section 42 of the Act on 20.9.1977 for setting aside the Scheme, objecting to the utilisation of the land of value of -/2/- (two annas) and allotments made to the other rightholders for their benefit. On 24.1. 1979 a Mushtehri Mundadi was made for information of all the villagers concerned, but the rightholders were absent and ex party proceedings were taken against them. The Panchayat's case was that under the said Scheme the Panchay- at land was consolidated, repartitioned and allotted to persons who did not have any right to hold the land. Be- sides, the land of Dharat containing two wells and a big house being religious place of worship was also partitioned under the Scheme and consequently the Panchayat has been reduced to a landless person, financially weakened and rendered incapable of rendering service in the vill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders and not of confirmation of the Scheme; and that a Full Bench of the Punjab and Haryana High Court in Jagtar Singh v. Additional Director, Consolidation of Holdings, Jullundar, AIR 1984 P H 216, taking the view 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 has overruled AIR 1982 Punjab and Har- yana-- 148 and that Full Bench decision has since been followed in 1988 Pun. L.J. 535. Mr. Rohtagi further submits that on merits also there was ample justification for the Director to have taken the view it did inasmuch as Panchayat lands were taken into consolidation and repartitioned and allotted to persons who had no right to obtain the land thereby impoverishing the Panchayat and rendering it incapa- ble of giving any help to the villagers. Mr. Harbans Lal, learned counsel for the respondents submits that the Full Bench decision that the limitation under rule 18 does not cover an order confirming a scheme is not tenable inasmuch as confirmation of a scheme is only by an order as contemplated under rule 18, and an applica- tion cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration. There is therefore no doubt that this section envisages proceedings wherein order is passed, scheme prepared or confirmed or repartition made. These are the distinct proceedings for the purpose of exercising jurisdiction under this section. Rule 18 deals with limitation for application under section 42, and it reads: 18. Limitation for application under section 42:--An application under section 42 shall be made within six months of the date of the order against which it is filed: Provided that in computing the period of limitation, the time spent in ob- taining certified copies of the orders and the grounds of appeal, if any, filed under sub- section (3) or sub-section(4) of section 21, required to accompany the application shall be excluded: Provided further, that an applica- tion may be admitted after the period of limitation prescribed therefore if the appli- cant satisfies the authority competent to take action under section 42 that he had sufficient cause for not making the application within such period. From a perusal of this rule there ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a scheme and the repartition carried would fail within the scope of 'order' as used in rule 18 of the rules. The rule did not come into play when a petitioner challenged either the scheme of consolidation including its preparation or confirmation of the repartition made in pursuance there- of. The amendment made this position clear. In a subsequent decision reported in 1988 Pun. L.J. 535: Joginder Singh and Ors. v. The Director, Consolidation of Holdings, decided on August 8, 1988, where the direct hold- ers had not challenged any order of the consolidation au- thorities but had attacked the validity of the scheme and the repartition, it was rightly held that the bar of limita- tion of six months in rule 18 of the Rules was not attracted to the facts of that case. Mr. Harbans Lal submits that the above decisions require reconsideration. We do not agreed. We have perused the provisions of the Act and rule 18. The Act provides for the compulsory consolidation of, and for prevention of fragmen- tation of, agricultural holdings in the State of Punjab and for the assignment or reservation of land for common purposes of the village. It appears that prior to the Act there wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; has not been used by the legislature in this sec- tion. Section 21 deals with repartition. Under sub-section (1) of this section, the Consolidation Officer shall, after obtaining the advice of the land owners of the estate or estates concerned, carry out repartition in accordance with the scheme of consolidation of holdings confirmed under section 20 and the boundaries of the hold- ings as demarcated shall be shown on the Shajra which shall be published in the prescribed manner in the estate or estates concerned. There is no provision of passing of any 'order' under this sub-section. Under subsection (2) any person aggrieved by the repartition may file written objec- tion within 15 days of the publication before the Consolida- tion Officer who shall after hearing the objectors pass such orders as he considers proper confirming or modifying the repartition. Thus this sub-section envisages passing of orders on the objections after hearing the objectors. Sub- section (3) provides that any person aggrieved by the order of the Consolidation Officer under sub-section (2) may within one month of that order file an appeal before the Settlement Officer (Consolidation) who shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll Bench deci- sion in Jagtar Singh v. Additional Director, Consolidation of Holdings (supra). Mr. Harbans Lal's submission that even if no limitation was prescribed the application of the Panchayat before the Director was inordinately delayed is not tenable. According to the learned counsel the period of two years would be reasonable period. We are unable to agree. In matters like Consolidation of Holdings by a scheme and the preparation and confirmation of the scheme and repartition thereafter the objections may arise at various stages for various reasons and it will not be possible to prescribe any hard and fast rule as to reasonable period after which an appli- cation could be made under section 42 of the Act. The legis- lature itself did not do so. In the instant case the Pan- chayat filed the application on 20th September, 1977 before the Director of Consolidation under section 42 of the Act praying for the revocation of the Scheme and for directions for fresh valuation to be ordered and repartition effected through appropriate authorities stating that the Sarpanch was not given any Nishan Dehi or demarcation on the spot nor was issued any passbook, and the petition wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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