SEWA SINGH Vs. STATE OF PUNJAB AND ORS.

JUDGEMENT

(1.) THE facts and the point of law involved in this case have been set out in my order of reference of 11th of May, 1966, and only the salient aspects of the legal controversy may briefly be recapitulated. It was on 29th of September, 1959 when the consolidation operations in village Viran Kotli were concluded and the estate is stated to have "reverted to the revenue authorities". Ishar Kaur, a right -holder in village Viran Kotli had been provided with a pathway under the scheme. Jabbar Singh, the fourth Respondent, who used to be in cultivating possession 6f the land of Ishar Kaur purchased her entire holding in village Viran Kotli by a registered sale -deed of 1st of February, 1960. It may be mentioned that village Viran Kotli is admitted to be a bechiragh Village. The mutation of this sale transaction was sanctioned on 26th of April, 1962. The fourth Respondent filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, (hereinafter also called the Act) on 8th of September, 1960 (Annexure 'B'), and such aspects of it as are important for the point under reference may be briefly mentioned. The relief sought in this petition under column, (b) is provision of a pathway. Jabbar Singh, the fourth Respondent, as a Petitioner, under column (c) is stated to be a resident of village Rajab and a cultivator of village Viran Kotli. In column (h) it is stated by Jabbar Singh that "he had not filed any appeal under Sub -sections (3) and (4) of Section 21 of the Act because he had purchased the holding on 1st of February, 1960, "and the limitation for objections has been finished". Various reasons are assigned in column 10 for granting of the relief sought in the application under Section 42, the principal one being that village Viran Kotli is uninhabited and from Rajab, where the Petitioner resides, he has to pass through other right -holders' lands to come in the fields he had purchased from Ishar Kaur. It was also stated that their existing pathway provided for his fields was under sem.

(2.) ACCORDING to Section 42 of the Act, the State Government "may at any time" to satisfy itself about the legality or propriety of any order made by any officer "call for and examine the record of any case...and may pass such order in reference thereto as it thinks fit". The fetter of limitation on such an application was placed for the first time by Clause 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as the Rules) on 18th of March, 1960. The State Government, which under Clause (ff) of Sub -section (2) of Section 46 of the Act is empowered to make rules for "applications made under this Act. and the period within which applications shall be filed," provided under Clause 18 in a notification of 18th March, 1960, that "an application under Section 42 shall be made within six months of the date of the order against which it is filed". It is common ground that the order which had determined the right to the pathway for the land acquired by the fourth Respondent from Ishar Kaur was that of 29th of September, 1959 when the record -of -right was completed and the possession had passed. An application under Section 42, under Clause 18, therefore, had to be made within six months from 29th of September, 1959, that is to say, by the 30th of March, 1960. The Additional Director, who disposed of the application under Section 42 without discussing or indeed noticing that the application was barred by time, accorded Jabbar Singh the relief prayed for., In the impugned order, the Additional Director after hearing the right -holders including Sewa Singh Petitioner, provided a passage to the fourth Respondent through the fields of Sewa Singh. The relevant passage in the order may briefly be reproduced:

(3.) THE path was accordingly provided to the fourth Respondent and Sewa Singh was given an equivalent amount of land in value from another Khewat.