OM PARKASH GOEL Vs. STATE OF HARYANA

JUDGEMENT

(1.) In the course of proceedings for consolidation of holdings in Hissar, the petitioner Om Parkash applied on 10th January, 1966, for partition of a Khata which he jointly held with Shankar Lal and other respondents 3 to 15. The Consolidation Officer, while forwarding this application to the Settlement Officer, reported that the request of the petitioner for partition be declined as a part of the joint Khata was within the municipal limits, the other shareholders were not present, and it was better to keep the Khata joint. On 9th February, 1966, when the matter came up before the Consolidation Officer, neither the petitioner nor any other shareholder was present, and agreeing with the report of the Consolidation Officer, the Settlement Officer rejected the petitioner's application for partition of the joint Khata. This order having been upheld by the Settlement Officer (Sales) exercising powers under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act), the petitioner Om Parkash Goel has invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution. He prays for a writ of mandamus requiring the respondent-authorities to partition his joint Khata. Mr. M.R. Agnihotri, appearing for the petitioner has urged :-

(2.) The petition has been resisted by the Advocate-General, Haryana, who has pointed out that the petitioner's application under section 42 of the Act was itself barred by time and the petitioner had no right to insist upon the partition of the joint Khata especially when all the co-sharers had not appeared or communicated their consent to the authorities. After hearing the parties' counsel, I am of the opinion that there is no merit in this petition, and it must be dismissed. In the first place, the petitioner's application under section 42 of the Act being barred by time and the delay having not been specifically condoned, the order made by the Settlement Officer (Sales) cannot be interfered with.

(3.) Section 16-A on which the petitioner relies, no doubt confers power on the consolidation authorities to partition a joint Khata, but a bare persual of that provision goes to show that it is not obligatory but vests a discretion in the authority concerned. This is also the view, which has been taken by Mahajan, J. recently in Civil Writ No. 2816 of 1964, Malhe and others v. State of Punjab and others, decided on 17th May, 1967, where an earlier decision of this Court in Pat Ram and others v. Punjab State and others (Civil Writ No. 1641 of 1960), dated 18th October, 1963, has been distinguished.