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
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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
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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,
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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."
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
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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
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