Punjab-Haryana High Court
Balbir Singh And Ors vs State Of Haryana And Ors on 18 April, 2024
Bench: Sureshwar Thakur, Lalit Batra
Neutral Citation No:=2024:PHHC:053357-DB
CWP-5939-2018 and connected cases -1- 2024:PHHC:053357-DB
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
Reserved on: 20.03.2024
Pronounced on: 18.04.2024
1. CWP-5939-2018
BALBIR SINGH AND OTHERS .....Petitioners
Versus
STATE OF HARYANA AND OTHERS ....Respondents
2. CWP-27924-2018
NIRMALA SIHAG AND ANR. .....Petitioners
Versus
STATE OF HARYANA AND OTHERS ....Respondents
3. CWP-31050-2018
DEVENDER .....Petitioner
Versus
STATE OF HARYANA AND OTHERS ....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE LALIT BATRA
Argued by: Mr. Vijay Kumar Jindal, Senior Advocate with
Mr. Akshay Jindal, Advocate
Mr. Pankaj Gautam, Advocate
for the petitioner(s) (in CWP-5939-2018).
Mr. Adarsh Jain, Advocate
for the petitioner(s)
(in CWP-27924-2018 and CWP-31050-2018).
Mr. Ankur Mittal, Addl. A.G., Haryana with
Mr. P.P.Chahar, Sr. DAG, Haryana.
Mr. Rohit Rattewal, Advocate for
Mr. Ashish Yadav, Advocate
for respondent No. 6 (in CWP-5939-2018).
****
SURESHWAR THAKUR, J.
1. Since all the writ petition(s) (supra), involve common
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questions of law, besides, arise from common thereto Annexures, thus,
they are amenable to be decided through a common verdict.
2. For the sake of brevity, the facts of CWP-5939-2018 are
taken here for deciding the instant controversy.
3. Through the instant writ petition, the petitioner(s) ask for
quashing of Annexure P-10, as became passed by the Commissioner,
Gurgaon Division, exercising the powers of Director Consolidation
under Section 42 of the East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 (hereinafter for short called as
the 'Consolidation Act, 1948') besides they also ask for the quashing of
Annexure P-11, as became passed by the Tehsildar-cum-Consolidation
Officer, Manesar, exercising the powers under Section 21 (2) of the
'Consolidation Act, 1948'.
4. The consolidation operations in the mohal concerned
commenced in pursuance to a notification (Annexure P-1), which
became issued on 27.03.2000. Subsequently, the Consolidation
Advisory Committee was constituted on 25.05.2001. As reflected in
Annexure P-3, the said Consolidation Advisory Committee determined
the valuations of land, thus in the hereinafter extracted manner.
Land owned by the proprietors 16 Anna
Cultivable land of the Gram Panchayat 12 Anna
Drar and Nalas 8 Anna
Pahar 4 Anna
5. The draft consolidation scheme was published on
16.06.2008 and after the hearing of objections the scheme was
sanctioned/accepted on 28.07.2010 (Annexure P-4). Post the making of
Annexure P-4, the process of re-partitioning was initiated and was
completed from 10.03.2011 to 31.03.2011. The said re-partitioning
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proceedings are annexed as Annexure P-5. As unfolded by Annexure P-
6, which though embodies thereins the proceedings launched under
Section 21(1) of the ' Consolidation Act, 1948', but it appears that the
aggrieved from Annexure P-6, did not prefer any appeal or revision
thereagainst. Resultantly, possession in terms of the scheme of re-
partitioning Annexure P-6, was delivered from 11.06.2011 to
25.06.2011, thus to the estate holders concerned. However,
subsequently one Satpal son of Googan and others submitted a
complaint (Annexure P-7) to the Director General of Consolidation of
Holdings, Haryana, alleging therein that 150 acres of panchayat land
valued at Rs. 300 crores has been transferred to the private parties.
6. On Annexure P-7, the Director General of Consolidation
while exercising powers under Section 42 of the 'Consolidation Act,
1948', made a direction wherebys the valuations of the panchayat land
were ordered to be re-made besides the transfer of panchayat land to the
private parties, as made in the consolidation proceedings, but was also
set aside (Annexure P-8).
7. Against Annexure P-8, some of the aggrieved filed writ
petition bearing No. 21861 of 2012 and on the said writ petition
Annexure P-9 became rendered. The operative portion of Annexure P-9
is extracted hereinafter.
"..In view of above, this writ petition is allowed and the
order under challenge dated 22.8.2012 (Annexure P8)
stands quashed. The Divisional Commissioner, Gurgaon
Division, Gurgaon upon whom powers of the Government
have been conferred under Section 42 of the Act is
directed to take up the matter afresh and pass an
appropriate order after affording effective opportunity of
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hearing to both the parties. Both the parties are directed
to appear before the above said officer on 29.7.2013. The
Commissioner will serve notice upon the other
rightholders also who are likely to be affected.."
8. In pursuance to the above made orders made by this Court,
the Director Consolidation passed Annexure P-10, whereby he
remanded the lis to the consolidation officer concerned, who made
Annexure P-11. Resultantly both Annexures P-10 and P-11 become
assailed before this Court.
Reasons for accepting the writ petition(s) and for setting aside the
impugned Annexures.
9. It is an uncontested factum that Annexure P-6, remained
un-assailed at the instance of any of the aggrieved. Annexure P-6 was
drawn in terms of Section 21 (1) of the 'Consolidation Act, 1948'
provisions whereof, become extracted hereinafter, therebys given the
said Annexures rather remaining unchallenged through an appeal or
revision being preferred thereagainst. Resultantly, it acquired finality
and conclusivity.
"21. Repartition - (1) The Consolidation Officer shall,
after obtaining the advice of the landowners of the estate
or estates concerned, carry out repartition in accordance
with the scheme of consolidation of holdings confirmed
under section 20, and the boundaries of the holdings as
demarcated shall be shown on the shajra which shall be
published in the prescribed manner in the estate or estates
concerned."
10. Moreover, when the said Annexure P-6 also became
implemented and executed through apposite possessions becoming
delivered to the estate holders concerned. Therefore, but obviously the
said delivery of possessions was made only after the updation of
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records becoming made in terms of Section 22 of the 'Consolidation
Act, 1948'.
11. Though after the updation of records taking place, there is
no exercisable jurisdiction vested, in the Director of Consolidation
rather within the domain of Section 42 of the 'Consolidation Act,
1948', 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 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,
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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."
12. 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 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.
13. 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. Therefore, the operative portion of the
verdict (supra), as made by this Court, thus leading the Director
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Consolidation through to Annexure P-10, hence make an order of
remand, to the Consolidation Officer concerned, whereafters' the
Consolidation Officer made the impugned Annexure P-11, thus are
declared to be per incuriam, the declaration of law made in Parkash
Singh's case (supra).
14. Be that as it may, after the updation of records taking place
in terms of Section 22 of the 'Consolidation Act, 1948' and that too
after none of the aggrieved from Annexure P-6, making a challenge
thereto, therebys when it acquired binding and conclusive effect.
Resultantly when thereafters' transfer of possessions were made to all
the estate holders concerned, inclusive of the Gram Panchayat
concerned. Consequently, the unchallenged finalized consolidation
scheme, thus was not amenable to be revoked through the making of a
legally infirm order (Annexure P-10) besides by the co-equally infirm
order (Annexure P-11), both orders whereof, are made in terms of a
verdict made by this Court in CWP No. 21861 of 2012, verdict whereof
for reasons (supra), is per incuriam the declaration of law made in
Parkash Singh's case (supra).
15. The said decisions 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'
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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
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."
16. In consequence, the orders (supra) which do prima facie,
vary and revoke the finalized consolidation scheme are in conflict with
Section 36 of the 'Consolidation Act, 1948' and are required to be
quashed and set aside.
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17. In sequel, the writ petition succeeds and the impugned
orders are quashed and set aside on the ground that they are made in
gross departure of the validly exercisable jurisdiction by the said
authorities.
18. Before parting this Court is led to make certain
observation(s) against the authorities exercising jurisdiction under
Section 42 of the 'Consolidation Act, 1948'. Moreover, this Court is
also led to make certain corrective observation(s) vis-a-vis the
Collectors concerned, exercising jurisdiction under the Punjab Village
Common Lands (Regulation) Act, 1961. The said corrective
observation(s) are as under:-
1) Firstly, the authorities envisaged under Section 42 of the
'Consolidation Act, 1948' are required to be adhering to the mandate of
law encapsulated in Parkash Singh's case (supra) besides are enjoined
to also revere the judgment of even date rendered by this Court.
2) It appears that the non compliance(s) to the mandates as
enclosed in this judgement do arise either because of sheer lack of
knowledge or ill training(s) of the authorities contemplated under
Section 42 of the 'Consolidation Act, 1948'. Therefore, the Additional
Chief Secretary(ies) to the Governments of Punjab and Haryana, are
directed to forthwith prepare data, thus revealing the numbers of
unchallenged verdicts, which became recorded by the authorities
contemplated under Section 42 of the 'Consolidation Act, 1948',
especially when such verdicts are outside the contours and domains of
judgment made today by this Court. The said data be collected and
submitted before this Court on or before 15.07.2024.
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3) Moreover, this Court has also consistently noticed that the
Collectors concerned in making trials both over petitions cast under
Section 7 and/or under Section 11 of the Punjab Village Common
Lands (Regulation) Act, 1961, though are required to be framing issues
as arise from the contentious pleadings of the litigants concerned, and,
whereafter they are required to be permitting the litigant concerned, to
adduce the apposite evidence on those issues, whereons, the
discharging onus becomes cast on the litigants concerned, but yet the
said recourses remain un-adopted, thus leading to gross injustice.
4) The Collectors concerned are also not bearing in mind the
principles relating to proof of demarcation reports through the author(s)
thereof stepping into the witness box.
5) The appellate authorities concerned, while dealing with the
applications for condoning the delay are also not formulating issues, on
the contentious pleadings nor are they permitting the litigant concerned
to adduce the evidence discharging onus thereons.
19. Therefore, this Court also orders the Additional Chief
Secretary, Revenue(s), respectively to the State of Punjab and to the
State of Haryana, to ensure, that trainings are imparted to the authorities
contemplated under Section 42 of the 'Consolidation Act, 1948', besides
are directed to ensure that trainings are imparted to the Collectors and
Appellate Authorities contemplated under the Punjab Village Common
Lands (Regulation) Act, 1961.
20. The trainings to be so imparted be ensured to be completed
within two months from today and with an intimation to this Court
becoming made on an affidavit to be sworn in by the concerned.
21. For the purpose(s) (supra), list on 15.07.2024.
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FINAL ORDER OF THIS COURT.
22. In aftermath, this Court finds merit in the writ petition(s)
and, with the above observation(s), the same are allowed. The
impugned orders are quashed and set aside.
23. 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) besides
leaves liberty in the State Government, to thus for well informed and
tangible reasons issue a notification in terms of Section 36 of the
'Consolidation Act, 1948'.
24. Since the main case(s) itself have been decided, thus, all
the pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR)
JUDGE
(LALIT BATRA)
18.04.2024 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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