Punjab-Haryana High Court
Pritam Singh vs Director Consolidatione on 24 April, 2024
Bench: Sureshwar Thakur, Lalit Batra
Neutral Citation No:=2024:PHHC:056623-DB
CWP-10088-1997 -1- 2024:PHHC:056623-DB
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-10088-1997
Reserved on: 10.04.2024
Pronounced on: 24.04.2024
PRITAM SINGH AND ANR. .....Petitioners
Versus
DIRECTOR CONSOLIDATION OF HOLDINGS, PUNJAB AND
ORS. ....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE LALIT BATRA
Argued by: Mr. Rahul Sharma, Advocate
for the petitioner.
Mr. Maninder Singh, Sr. DAG, Punjab.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, a challenge is made to the order drawn on 25.04.1997 (Annexure P-6), thus by the Director Consolidation of Holdings, Punjab, Jalandhar, upon petition bearing No.21/96, as became cast under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter for short called as the 'Consolidation Act, 1948'), wherebys Annexure P-3 became reviewed.
2. In the said petition bearing No. 21/96, the petitioners thereins, respondents herein claimed the setting aside of the order dated 22.01.1996 (Annexure P-3), order whereof, became drawn by the Additional Director, Consolidation Punjab, Mohali.
3. Annexure P-3, became drawn on a petition bearing No.16/96, whereins the petitioners thereins, who are residents of village Kishanpura, claimed rather for setting aside the finalized consolidation 1 of 8 ::: Downloaded on - 26-04-2024 01:33:03 ::: Neutral Citation No:=2024:PHHC:056623-DB CWP-10088-1997 -2- 2024:PHHC:056623-DB scheme, and, for ignoring mutation No.299 dated 09.07.1960 besides also for relief qua the disputed lands being redistributed amongst the right holders. The said petition became accepted. Moreover, the mutation bearing No.299 dated 09.07.1960 being a nullity was ignored and the land in dispute was ordered to be re-partitioned amongst the right holders concerned. Resultantly, the disputed lands became snatched from the Gram Panchayat concerned and became re- distributed and re-partitioned amongst the petitioners in the said petition.
4. Vide order dated 22.01.1996 (Annexure P-3), one Pritam Singh, petitioner herein became allotted ½ share in 36K-3Mls and the land in dispute has been mutated in favour of Pritam Singh.
5. Feeling aggrieved vis-a-vis from the above said allotment qua Pritam Singh, one Nirmal Singh and Bhajan Singh being khewatdars of village Kishanpura, filed petition bearing No. 21/96 under Section 42 of the 'Consolidation Act, 1948', thus seeking the quashing of the order dated 22.01.1996 (Annexure P-3). On the said petition, Annexure P-6, became passed. The operative part of the order dated 25.04.1997 (Annexure P-6) is extracted hereinafter.
" Thus shamlat land in dispute should have been allotted to the petitioner in place of the respondent which was done vide order dated 22.01.1996 at the back of the petitioners and also that in view of peculiar facts of the case the petitioner has better right to the allotment vis-a-vis the right of the respondent. I find no substance in the arguments of Sh. P.C.Joshi Adv. Counsel for the respondent and hence reject the same. Accordingly, I accept the petition allot shamlat land comprising in Kh. No. 25//16, 17, 18, 23, 24 and 25 total 36 K 3 Mls to the 2 of 8 ::: Downloaded on - 26-04-2024 01:33:04 ::: Neutral Citation No:=2024:PHHC:056623-DB CWP-10088-1997 -3- 2024:PHHC:056623-DB to the extend of ½ share to the petitioners in equal."
6. Feeling aggrieved from the afore order (Annexure P-6), the respondent therein Pritam Singh, petitioner herein has filed thereagainst the instant writ petition before this Court.
Inferences of this Court qua the initial order dated 22.01.1996 (Annexure P-3).
7. The reason as became assigned by the Additional Director Consolidation, Punjab, qua the making of the said decision (Annexure P-3), is ex facie grooved in the factum, that it became rested upon the principle that the direction thereunders, as made for re-distribution of the disputed lands amongst the estate holders concerned, thus becoming rested upon the principle that there is no period of limitation prescribed rather for undoing a clerical error or an arithmetical mistake. However, the assigned reason appears to be completely fallacious.
8. The reason being that there was no material placed on record before the author of Annexure P-3, thus with candid echoings thereins, that the updation of records which occurred in pursuance to the finalization of the consolidation scheme, rather was not in conformity with the scheme istamal, naksha hakdarwar or khatouni paymash. If so, it was grossly inapt for the author of Annexure P-3, to conclude that the updation of records was not in consonance with either the scheme istamal, naksha hakdarwar or khatouni paymash. Resultantly, thereby he could have well founded rather the said premise, thus for his unsettling or undoing the updation of records nor he could proceed to re-distribute or re-partition the disputed lands to the petitioners, in the petition (supra), through his exercising jurisdiction under Section 42 of the 'Consolidation Act, 1948'.
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9. The reason for drawing the above conclusion spurs from the factum, that after the updation of records taking place, there is no validly exercisable jurisdiction vested, in the Additional Director of Consolidation, rather within the domain of Section 42 of the 'Consolidation Act, 1948', to make tinkerings with the records of rights, especially, when it has been declared in a Full Bench Judgment made by this Court in case titled as 'Parkash Singh and Others Vs. Joint Development Commissioner, Punjab and Others' reported in 2014 (2) R.C.R. (Civil) 721, relevant paragraph whereof is extracted hereinafter, that the exercising of jurisdiction by the statutory authority concerned, on a motion laid before him, under Section 42 of the 'Consolidation Act, 1948', rather is limited to correction of arithmetical or clerical errors and/or to the creation of a consolidation path, but where no such consolidation path is created or is exercisable when there is obstruction against the user of said path by any of the estate holders concerned.
46. We, therefore, have no hesitation in recording that it is beyond debate that, if a question arises, before an officer exercising power under the Consolidation Act, regarding any right, title or interest in "Shamilat Deh"
"vested" or deemed to have vested in a Gram Panchayat, a Consolidation Officer, the State or its delegate exercising plenary power under Section 42 of the Act, are not empowered, while examining the correctness of any scheme prepared during consolidation or order passed thereunder to record a finding on such a question of title or to hold that land is or is not "Shamilat Deh" and as a consequence whether any right, title or interest vests or does not vest in the Gram Panchayat. The only authority empowered to answer such a question is the Collector, 4 of 8 ::: Downloaded on - 26-04-2024 01:33:04 ::: Neutral Citation No:=2024:PHHC:056623-DB CWP-10088-1997 -5- 2024:PHHC:056623-DB exercising power under Section 11 of the 1961 Act. As a necessary corollary an order passed under Section 42 of the Consolidation Act, holding that the land vests or does not vest in a Gram Panchayat would be illegal and nonest for assumption of jurisdiction where there is none, as opposed to a mere erroneous exercise of jurisdiction or may, at best be construed to be an order passed by a tribunal of limited jurisdiction, in the exercise of its limited powers to correct errors in the scheme or orders passed during consolidation and nothing more. The latter conclusion would require a degree of explanation."
10. Therefore, when but obviously the jurisdiction to re-draw the entire concluded consolidation scheme, thus on anvil of their being any purported over valuation or under valuation of the respective estates of the estate holders concerned, and, of the Gram Panchayat concerned, besides on anvil of mis-allotment(s) of lands being made respectively to the estate holders concerned besides to the Gram Panchayat concerned, rather is not exercisable, thus by the authority contemplated under Section 42 of the 'Consolidation Act, 1948'. Resultantly, therebys the exercisings of jurisdiction over the said controversy by the Additional Director rather on a motion constituted before him under Section 42 of the 'Consolidation Act, 1948', thus was vitiated with the vice of lack of jurisdictional empowerment inhering in him, thus to either entertain and much less to adjudicate the said motion.
11. Predominantly, also when the validly exercisable jurisdiction, thus on emergence of the dispute(s) (supra), is expostulated in the judgment (supra) rather to be exercisable solitarily by the Civil Court concerned.
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12. Conspicuously also, when the Additional Director, Consolidation in making Annexure P-3, and, the Director, Consolidation in making Annexure P-6, both have exercised jurisdiction, as contemplated under Section 42 of the 'Consolidation Act, 1948', thereby it appears that two motions under the same statutory provision were not maintainable. Moreover, irrespective of the above when for reasons assigned hereinabove and as became assigned hereinafter, the exercising of jurisdiction respectively by the Additional Director, Consolidation concerned, and, by the Director, Consolidation rather is completely beyond the contours of Section 42 of the 'Consolidation Act, 1948', therebys also the said exercisings of jurisdiction, is declared to be exercised with a material illegality and gross impropriety.
13. The said Annexures are not only ex facie per incuriam the declaration of law made in Parkash Singh's case (supra), but are also in derogation of the statutory mandate enclosed in Section 36 of the 'Consolidation Act, 1948', provisions whereof are extracted hereinafter, inasmuch as, therebys the unchallenged binding and conclusive consolidation scheme, has been untenably varied or revoked, and, that too, despite the said power of revocation or initiation of a fresh scheme becoming thereunders' preserved rather only in the State Government, through its making an apposite therewith notification, whereafters' thereunders the subsequent scheme is required to be prepared, published and confirmed but in accordance with the provisions of the 'Consolidation Act, 1948'. As such when the State Government was the sole repository of exercising able powers to revoke or vary the earlier finalized consolidation scheme, thus through a notification becoming 6 of 8 ::: Downloaded on - 26-04-2024 01:33:04 ::: Neutral Citation No:=2024:PHHC:056623-DB CWP-10088-1997 -7- 2024:PHHC:056623-DB issued by it, whereafters a fresh consolidation scheme, thus was required to be drawn, but only on a notification becoming issued by the State Government, rather for re-bringing the mohal concerned to re- consolidation operations, so that, upon adherence being made to all the apposite statutory provisions, thus the finalized consolidation scheme becomes made. However, when apparently there is no notification issued by the State Government, thus either for respectively varying or cancelling the instant consolidation scheme nor when there is any notification issued by the State Government rather for re-bringing the mohal concerned to re-consolidation, thus through adherence being made to all the relevant statutory provisions.
"36. Power to vary or revoke scheme. - A scheme ·for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by the authority which confirms it subject to any order of the State Government that may be made in relation thereto and subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act."
14. In consequence, the orders (supra) which do prima facie, vary and revoke the finalized consolidation scheme thus are in conflict with Section 36 of the 'Consolidation Act, 1948' and are required to be quashed and set aside.
FINAL ORDER OF THIS COURT.
15. In aftermath, the writ petition is disposed of with observation(s), aforesaid. The impugned order (Annexure P-6) as well as the order dated 22.01.1996 (Annexure P-3) are quashed and set aside on the ground that they are made in gross departure of the validly exercisable jurisdiction by the said authorities.
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16. However, this Court reserves liberty to the
aggrieved/private respondents concerned, to access the legally permissible remedies in terms of Parkash Singh's case (supra).
17. Since the main case itself has been decided, thus, all the pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR) JUDGE (LALIT BATRA) 24.04.2024 JUDGE kavneet singh Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 8 of 8 ::: Downloaded on - 26-04-2024 01:33:04 :::