Gram Panchayat vs Addl.Director Consolidation ...
2023 Latest Caselaw 16763 P&H

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

                          CWP No. 5905 of 2000 (O&M)
                          Reserved on: 20.09.2023
                          Date of decision: 26.09.2023

GRAM PANCHAYAT VILLAGE SOHALI
                                                                     -PETITIONER

                                    VERSUS

ADDL. DIRECTOR CONSOLIDATION PUNJAB AND ORS.

                                                                 -RESPONDENTS

CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
       HON'BLE MR. JUSTICE KULDEEP TIWARI

Present :   None for the petitioner.

            Mr. Maninder Singh, DAG, Punjab.

            Mr. Gaurav Datta, Advocate
            for the proposed applicants.

            Ms. Bhavna Datta, Advocate with
            Mr. Anirudh Singh Shera, Advocate
            for the respondent No.6.

            Mr. Kanwal Goyal, Advocate with
            Mr. Govind Tanwar, Advocate
            for the proposed respondent No.50.

                                            ***
SURESHWAR THAKUR, J.

CM-7447-CWP-2022

1. As prayed for, the applicants are ordered to be impleaded as co-

respondents No.49 to 50, being both just and proper parties. The amended

memorandum of parties, as enclosed along with the instant application, is

taken on record.

Main Case

2. Through the instant writ petition, the petitioner- Gram Panchayat

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challenges the validity of Annexure P-3. Annexure P-3 has been drawn in a lis

inter se one Balbir Singh and other residents of Village Tirtha, and, Jumla

Mushtarka Malkan of Village Tirtha, Tehsil Kharar, District Ropar, Hakam

Singh and others, residents of Village Tirtha, Tehsil Kharar, District Ropar.

3. The decision, as enclosed in Annexure P-3, was made on a

petition cast under Section 42 of the East Punjab Holdings (Consolidation and

Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the 'Act of

1948'). Through the impugned Annexure P-3, after accepting the petitioners'

claim, as became rested upon the underlined portion of the savings clause to

the definition of "shamlat deh", as exists in Section 2(g) of the Punjab Village

Common Lands (Regulation) Act, 1961 (hereinafter referred to as the 'Act of

1961'), provisions whereof stand extracted hereinafter, whereby the

proprietors concerned claimed, that the petition lands, excepting the lands

described in the reservation scheme, as Gair Mumkin Johar, rather be declared

to fall to their ownership, theirs becoming independently cultivated by them

prior to 1950.

"2(g) "Shamilat deh" includes

(1) lands described in the revenue records as shamilat deh [but excludes abadi deh, unless otherwise expressly provided in this Act];

(2) shamilat tikkas;

(3) lands described in the revenue records as shamilat, Tarafs, Pattis Pannas and Tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;

(4) lands used or reserved for the benefit of the village, community including streets, lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or gorah deh; [----]

[(4a) vacant land or plot situated in abadi deh or gorah deh not owned

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by any person; and]

(5) lands in any village described as banjar qadim and used for common purposes of the village, according to revenue records,

[----]

but does not include land which:

(i) [-----]

(ii) has been allotted on quasi-permanent basis to a displaced person;

[(ii-a) was shamilat deh, but, has been allotted on quasi-permanent basis to a displaced person, or, has been otherwise transferred to any person by sale or by any other manner whatsoever after the commencement of this Act, but on or before the 9th day of July, 1985.]

(iii) has been partitioned and brought under cultivation by individual

landholders before the 26th January,1950.

(iv) having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the shamilat deh and is so recorded in the Jamabandi or is supported by a valid deed; [and is not in excess of the share of the co-sharer in the shamilat deh].

(v) is described in the revenue records as Shamilat, Taraf, Pattis, Pannas, and Thola and not used; according to revenue records for the benefit to the village community or a part thereof or for common purposes of the village.

[(vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act].

(vii) [----]

(viii) was Shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-shares not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950; or

[(ix) was being used as a place of worship or for purposes, subservient thereto, immediately before the commencement of this Act]."

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4. Moreover, it was also claimed in the petition, that the description

made in the revenue records qua a portion of the petition lands, being Gair

Mumkin Charand and Banjar Qadim, is erroneous and further that, the said

lands were never reserved for the benefit of the village proprietary body

concerned.

5. It appears that the said claim became founded upon the premise,

that only after a pro-rata cut being made from the lawful estates of the estate-

holders concerned, that the apposite reservations were made. Further, the said

claim became planked on the fact, that since assuming the petition lands, with

the above categories, thus became reserved as such for the benefit of the

village proprietary body concerned, but since the village proprietary body

concerned yet did not in fact make user thereofs. Resultantly, it appears and

was contended that the petition lands be reverted to the petitioners or theirs

being entitled to seek re-partition thereof, in their favour.

6. In other words, it appears to have been contended, that since the

reservation of the petition lands, were made after a pro-rata cut being made,

from the legitimate holdings of the estate-holders concerned. Therefore, since

the purpose of reservation, did not become fulfilled, inasmuch as the said Gair

Mumkin lands, Charand lands, and, Banjar Qadim lands, rather never

evidently became used for the benefit of the village community or a part

thereof or for common purposes of the village concerned. Resultantly, it

appears to have been contended, that the estate-holders concerned became

entitled to seek reversions thereof, in their favour.

7. The learned Additional Director concerned, who drew the

impugned Annexure P-3, after accepting the above pleas, proceeded to make

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an order of remand, upon, the Consolidation Officer, Kharar, thus with

directions upon him, that after his re-checking the records and assessing the

shares of the estate-holders concerned, in terms of their shares, at the time of

holding of consolidation in the village qua Khewat No.139/126 and Khataunis,

as mentioned in petition, thereby his proceeding to rectify the errors in the

consolidation scheme.

8. In the petition, it is pleaded that since after making pro-rata cuts

or deductions from the legitimate holdings of the estate-holders concerned,

thus reservations were made of said truncated lands, thus for the benefit of the

village proprietary body concerned. Therefore, obviously the Gram Panchayat

concerned became the manager and controller of the said reserved lands, but

yet ownership rights became vested in the members of the village proprietary

body concerned or in the enlisted Bartandarans of the village proprietary body

concerned. Resultantly, it is claimed in the writ petition, that since the Gram

Panchayat concerned, thus was the manager and controller of the reserved

lands, therefore, the impleadment of the Gram Panchayat concerned in the

array of respondents, in the relevant petition, thus was imperative, the same

being both a just and a proper party to the lis, thus for ensuring the makings of

a clinching determination, upon, the entire gamut of the lis.

9. The above made argument is, in terms of the claim made in the

relevant petition, wherein, it is pleaded that the reservations, as became made

for the benefit of the entire village proprietary body concerned, thus were

made purportedly after making a pro-rata cut from the legitimate holdings, as

were held by the estate-holders concerned. If so, the Gram Panchayat

concerned became the manager and controller of the said reserved lands, thus

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for ensuring the better and the fittest user thereof, by all the members of the

village proprietary body concerned.

10. If so, the impleadment in the array of respondents rather in the

relevant petition, thus of the Gram Panchayat concerned, was obviously

imperative, as it was the manager and controller of the said reserved lands.

However, it remained unimpleaded in the relevant lis. Consequently, despite it

being both a just and a necessary party, thus for ably contesting the lis, thus as

manager and controller of the reserved lands, thereby its non-impleadment

rather resulted in gross prejudice being caused to the other lawful estate-

holders concerned, in whose favour the lands were reserved, and for the ablest

user thereof, by the village proprietary body concerned, rather the Gram

Panchayat concerned, thus became statutorily bestowed with the function of

its managing and controlling hence the said reserved lands.

11. In consequence, since a necessary party to the lis, rather remained

unimpleaded, as such, thereby there is breach caused to the principle of "audi

alteram partem". Resultantly, the further legal consequence of the said

breach, is that, thereby the impugned order requires its being quashed and set

aside.

12. Be that as it may, it appears that the lis appertains to assertion of

the title as owner by the estate-holders concerned vis-a-vis the disputed lands.

The above assertion became planked upon the above extracted savings clause,

to the definition of shamlat deh. Moreover, the further claim made in the

petition related, to the mis-descriptions in the revenue records of the said

reserved lands, inasmuch as, theirs being incorrectly described as Charand

lands, or, as Banjar Qadim lands. Therefore, it was contended that even if

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assumingly the said lands were reserved purportedly rather on a pro-rata cut

being made from the legitimate holdings of the estate-holders concerned, yet

when there was non-user thereof by the members of the village proprietary

body concerned. Therefore, the estate-holders concerned became entitled to

the reserved lands becoming reverted to them, or, theirs being entitled to seek

re-partitionings thereof.

13. It is now got to be determined, whether in terms of the

jurisdiction conferred under Section 42 of the Act of 1948, provisions whereof

become extracted hereinafter, whether the said assertions, do per se

tantamount to assertion of title over the disputed lands, rather by the estate-

holders concerned, thus could become ably or tenably exercised in a petition

cast under Section 42 of the Act of 1948.

"42. Power of State Government to call for proceedings: The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under Act, call for and examine the record of any case pending before or disposed of by such officer and may pass order in reference thereto as it thinks fit;

Provided that no order or scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration."

14. For determining the limits of the aforesaid adjudicatory

jurisdiction conferred upon the authority concerned, as constituted under

Section 42 of the Act of 1948, it is apt to extract the relevant portion of the

judgment, recorded by a Full Bench of this Court, on 08.11.2013, upon, CWP-

2318-2002, paragraphs whereof become extracted hereinafter.

"The arguments addressed by counsel for the parties, appear to

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suggest a broad agreement that the Director Consolidation, has no power whether under Section 42 of the Consolidation Act or under any other provision to decide a question of title relating to "Shamilat Deh" but as counsel for the petitioners has raised a plea that in case there is an error in consolidation proceeding and the error is likely to affect ownership of a proprietor or the Gram Panchayat in "Shamilat Deh", the Director Consolidation would be entitled, in the exercise of power under Section 42 of the Consolidation Act, to order such a correction, even if it adversely affects the ownership of a Gram Panchayat, the plea requires a degree of consideration. Counsel for the petitioners also contends that as "Jumla Mushtarka Malkan" is not included in "Shamilat Deh" by Section 2(g) of the 1961 Act, Consolidation authorities, who have created "Jumla Mushtarka Malkan" in the exercise of powers under Section 18, 23-A of the Consolidation Act and Rule 16(ii) of the Consolidation Rules would necessarily be empowered to decide whether the land is or is not "Jumla Mushtarka Malkan", i.e., whether it was created by applying an excesive pro-rata cut on the holdings of proprietors and whether land described as "Jumla Mushtarka Malkan" was actually earmarked or reserved for a common purpose and as a consequence whether the land vests in the State Government or the Gram Panchayat, for the purpose of management and control.

Section 42 of the Consolidation Act reads as follows:- "42. Power of State Government to call for proceedings:-The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under Act, call for and examine the record of any case pending before or disposed of by such officer and may pass order in reference thereto as it thinks fit;

Provided that no order or scheme or repartition shall be varied or reserved without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration."

Accepting for a moment that power conferred by Section 42 of

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the Consolidation Act empowers the State or its delegate, the Director Consolidation/ Director Land Records to order correction of any error committed, while establishing the "Shamilat Khewat" or creating "Jumla Mushtarka Malkan" and while doing so to adversely affect the proprietary or possessory rights of a Gram Panchayat or the State, such an order, in our considered opinion, cannot be held to be a binding or a final adjudication on a question of title. Section 42 of the Consolidation Act merely empowers the State, to satisfy itself as to the legality or propriety of any order, passed or scheme prepared during consolidation and to correct any errors committed during consolidation but does not empower the authority to decide a disputed question of title. Thus, if a party raises a question of title, under Section 42 of the Consolidation Act or pleads that land has been wrongly allotted to the Gram Panchayat as it is not "Shamilat Deh" or there is an error in allotment of "Jumla Mushtarka Malkan" land, the Director Consolidation, should generally desist from passing an order touching upon a question of title and should direct parties to file a petition under Section 11 of the 1961 Act, where the land is "Shamilat Deh" and before an appropriate forum where the land is "Jumla Mushtarka Malkan". If, however, the authority does not adopt such a course and passes an order holding that the land does not vest in the Gram Panchayat or that the land is not "Jumla Mushtarka Malkan", the order so passed would at best be an order passed by a Tribunal of limited jurisdiction and, therefore, not conclusive as to the proprietory and possessory rights of a Gram Panchayat or a private individual, so as to estopp the Gram Panchayat or a private individual from approaching the adjudicatory authority i.e. the Collector exercising power under Section 11 of the 1961 Act or an appropriate forum to determine whether land vests or does not vest in a Gram Panchayat. As referred to in the preceding paragraphs, Consolidation authorities, including the authority exercising plenary jurisdiction, under Section 42 of the Consolidation Act, exercise powers of a revenue officer under the 1887 Act. A revenue officer is not competent to decide disputed questions of title as held by a Full Bench in Ajit Singh's case (supra) and the Hon'ble Supreme Court in Gram Panchayat, Nurpur (supra). Thus, even if we were to hold that

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Consolidation authorities are empowered, under the Consolidation Act, to correct errors, touching upon a question of title, such an exercise of power cannot be held to a final or a binding opinion on a question of title.

Consolidation authorities are tribunals of limited jurisdiction, conferred with power to consolidate land holding. A finding on a question of title by a tribunal of limited jurisdiction is binding or final as to the correction so ordered but cannot, be held to be final on a matter that does not fall to its jurisdiction. Such an order would be subject, necessarily to any adjudication on the question of title, by the jurisdictional forum, in case the land is "Shamilat Deh" by the Collector, exercising powers under Section 11 of the 1961 Act, in case the land is "Jumla Mushtarka Malkan" by an appropriate forum. We will deal with the forum that may be called upon to decide a dispute whether the land is "Jumla Mushtarka Malkan" at a later stage. At this stage, we would like to once again clarify that though counsel for the petitioner has canvassed that inherent in the exercise of a power to order correction, is the passing of an order holding that the land is or is not "Shamilat Deh" or "Jumla Mushtarka Malkan", such an order would not be binding on a question of title, whether it pertains to a Gram Panchayat or private individuals, or the Government."

15. A reading of the above extracted paragraph, occurring in

judgment (supra), delivered by the Full Bench of this Court, makes this Court

draw a conclusion, that since therein becomes enunciated a principle, that

when there is an assertion of title in the petition cast under Section 42 of the

Act of 1948, and/or, therein thus becomes embodied any assertion about mis-

allotment of lands to the Gram Panchayat concerned, thus on the ground, that

the allotted lands rather fall within the exception(s) to the definition of shamlat

deh, or, if there is any error in allotment of Jumla Mushtarka Malkan,

thereupon the authorities constituted under the Act of 1948, are required to

desist from delving into, or, making an adjudication, upon, the said raised

question(s) of title.

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16. It appears on a reading of the impugned order, that all the

assertions (supra), thus devolved upon assertion of title or ownership, inter se

the contesting litigants. The said assertions became banked on the beneficent

grace of the hereinabove underlined portion of the savings clause (supra) to

the definition of shamlat land, thus becoming assigned to the estate-holders

concerned. Therefore, the authority constituted under Section 42 of the Act of

1948, but obviously became barred to either delve into, or, make an

adjudication, upon the said assertion of title by the estate-holders concerned,

vis-a-vis, the disputed lands. Contrarily, it appears that through the drawing of

the impugned order, the authority concerned not only delved into the question

of title, but also prima facie made an affirmative adjudication thereons, vis-a-

vis, the estate-holders concerned. The above exercisings of jurisdiction by the

authority concerned is in breach of the above principles enunciated in the

judgment (supra). Therefore, the authority concerned in drawing the impugned

order thus has exceeded the jurisdiction conferred upon it, under Section 42 of

the Act of 1948. Resultantly, when the jurisdiction conferred under Section 42

of the Act of 1948 has been exceeded, thereby the impugned order warrants an

interference being made.

17. This Court may have validated the impugned order only if the

authority, who drew the impugned order, had thus in its making it, proceeded

to correct arithmetical or clerical mistake(s). Reiteratedly, the said jurisdiction

does not extend to either delve into, or, to determine the question of title, as

has been untenably done.

18. Cumulatively, this Court finds merit in the instant writ petition

and is constrained to allow it. Accordingly, the writ petition is allowed. The

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impugned order is quashed and set aside, leaving liberty to the estate-holders

concerned, to thus access the jurisdictionally competent forums, or, courts, for

raising and also for ensuring the makings of adjudications about the assertion

(supra), as became raised before a jurisdictionally incompetent forum.

19. All pending application(s), if any, stand disposed of accordingly.

(SURESHWAR THAKUR) JUDGE

(KULDEEP TIWARI) JUDGE 26.09.2023 devinder Whether speaking/reasoned ? Yes/No Whether reportable ? Yes/No

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