1. This is petition under Articles 226 and 227 of the Constitution of India, requiring this Court to quash the orders of the Additional Director, Consolidation of Holdings, Punjab, Jullunder, dated December 21, 1979, Annexure P-4 to the petition.
2. Facts giving rise thereto are these :
The petitioner as also respondent No. 2 named Swaran Singh were right-holders in village Bir Pind, Tehsil Nakodar, District Jullundur. Consolidation operations under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, referred to as 'the Act') took place in the village. In the due course the scheme of repartition was prepared. Repartition took place on July 20, 1961. Neither the petitioners nor respondent No. 2 objected to the same and it became final. According to the petitioner, none of them even filed objections thereto so as to attract any order under S. 21(2) of the Act. There were no appeals either under the said S. 21.
3. On the supposed assertion of the claim by respondent No. 2, that he had a right to have his land irrigated from a well, he fell out with his brother named Sham Singh, who is not a party to the present petition. This Sham Singh, in order to get respondent No. 2 injuncted from claiming such right and from restraining him from interfering with possession of Sham Singh over a water-channel, filed a suit in the Court of Sub Judge, II Class, Nakodar. The same was decreed on Jan. 25, 1979, vide judgment Annexure P-1, wherein the detail of the alleged water-course finds mention in the heading of the judgment.
While respondent No. 2 was in the process of prosecuting his appeal against the said judgment, he thought it fit to file a petition under Section 42 of the Act before the Additional Director, Consolidation, vide copy of petition Annexure P- 2. That was made on April 12, 1979. The appeal of Swaran Singh before the Additional District Judge against the judgment of the learned Subordinate Judge was dismissed on July 23, 1979. Seemingly, the finding of the trial Court was affirmed that Swaran Singh respondent No. 2 had no such claim against Sham Singh. Presumably finding that it would be futile to the litigation before the Additional Director against Sham Singh, respondent No. 2 withdrew his petition under Section 42 of the Act on Sept. 21. 1979 vide Order Annexure P-3 to the petition.
A few days later on Oct. 1979, respondent No. 2 filed a petition under S. 42 of the Act and this time directing it against Kundan Singh primarily (the present petitioner) claiming that he had a right of a water-course from the well situated in Khasra No. 35/27 which had not been provided to him as was the mandate of the scheme of consolidation and that the same should be done now. The learned Additional Director having perused the provisions of the scheme, as also the revenue record, came to the conclusion that the holding of the petitioner as reflected in the Khatauni Ishtemal prepared during the consolidation proceedings, revealed that his area was irrigated, and if that was so, then the petitioner was entitled to have, in accordance with para 8 of the scheme, a water-course by way of a direct link on the Killa-line from the source of irrigation for irrigation purposes since the land of the petitioner did not join the Ahata (the courtyard) of the Persian wheel. He accordingly accepting the petition, allowed a water-course to respondent No. 2 to his holding from the well situated in Khasra No. 35/27, along Killa numbers specified in his order Annexure P-4, which is now impugned.
4. The learned counsel for the petitioner, in the instance, relying on S. Gurdial Sing v. State of Punjab, AIR 1968 Punj 267 (FB); Thakar Singh v. Dharam Singh, 1969 Pun LJ 389 and Swaran Singh v. Addl. Director, Consolidation of Holdings, Punjab, Jullundur, 1976 Pun LJ 317 contends that the Additional Director Condoned the period of limitation illegally and improperly as good merits of the case are no ground for condoning the period of limitation.
It has further been asserted that admittedly the petition under Section 42 of the Act was time-barred and no cause had been pleaded by respondent No. 2 for condonation of delay. It seems to me that the argument has been built without any functional premises. It is the petitioner's own case that respondent No. 2 did not file any proceedings under S. 21(2), 21(3) or 21(4) of the Act and rest content with the repartition. Section 42 of the Act mentions the scheme, repartition or orders within the correcting ambit of the State Government, whose delegate is the Additional Director. Thus, three instances of exercise of power by functionaries under the Act are distinct and do not intermingle. It is only to orders passed under the Act that the clog of limitation for the purposes of challenge under Section 42 of the Act is attached. This has been authoritatively settled by this Court in Haqiqat Singh v. Additional Director, Consolidation of Holdings, Punjab, Chandigarh, (1981) 83 Punj LR 472 : (AIR 1981 Punj & Har 204). Thus, there is no merit on the ground of limitation and the contention raised is thus rejected.
5. It was then contended that respondent No. 2 having withdrawn the earlier petition under Section 42 of the Act could not file a subsequent petition on the same cause of action. In the first place, there is no warrant for such a proposition, but even, otherwise, the same is misfounded. The first petition was directed against Sham Singh and the second petition was directed against Kundan Singh primarily, though Sham Singh was added a party thereto without any purpose as no relief was sought against him. Additionally, it was pointed out that the earlier petition was withdrawn without seeking formal permission from the Additional Director to move him again in another petition. This objection too is misfounded as the second petition was neither sought to be instituted against Sham Singh primarily, nor are the strict principles of the Civil Procedure Code, in which this rule is well embedded, applicable to proceedings under Section 42 of the Act. Thus, this contention also is devoid of merit and deserves to be rejected.
6. Lastly, it was contended that the site of the water-course, which was being pleaded in the civil litigation, was different than the one which had now been provided for by the Additional Director, and on that ground the order is perverse. This objection again appears to me to be misfounded because the Additional Director has not taken into account what did respondent No. 2 litigate about with Sham Singh, though the possibility cannot be ruled out that the judgment might have been made available to him for perusal at the time of hearing.
Oblivious of those facts the Additional Director, it appears to me, had opened the charter and found out that when respondent No. 2 stood allotted irrigated land he was entitled to have facilities of irrigation in accordance with the provisions of the scheme. And what site suited most, in the circumstances, he allowed for the purpose, along side the Killa-line as specified in the impugned order. Such approach cannot termed as appalling or perverse.
7. No other point is being urged.
8. For the foregoing reasons, this petition fails and is hereby dismissed. No costs.
9. Petition dismissed.