Punjab-Haryana High Court
Shankri Devi Alias Shanker Devi And ... vs Director Consolidation Of Holdings Cum ... on 12 March, 2024
Bench: Sureshwar Thakur, Lalit Batra
Neutral Citation No:=2024:PHHC:036000-DB
CWP-18744-2022 (O & M) -1- 2024:PHHC:036000-DB
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-18744-2022 (O & M)
Reserved on: 05.03.2024
Pronounced on: 12.03.2024
SHANKRI DEVI ALIAS SHANKER DEVI AND ORS. .....Petitioners
Versus
DIRECTOR, CONSOLIDATION OF HOLDINGS-CUM-DIRECTOR,
LAND RECORDS, PUNJAB, JALANDHAR AND ORS.
....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE LALIT BATRA
Argued by: Mr. Krishan Singh Dadwal, Advocate
for the petitioners.
Mr. Maninder Singh, DAG, Punjab.
Mr. Manit Malhotra, Advocate
for respondent No. 3.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioners seek the
quashing of order dated 09.02.2022 (Annexure P-7), as became
rendered by respondent No. 1, wherebys after elapsing of a period of 32
years, the order dated 20.07.1987 (Annexure P-3) which was rather
passed with the agreement of the parties, thus have been set aside.
2. Before proceeding to determine the validity of the above
made prayer before this Court, it is imperative to go through Annexure
P-1. Annexure P-1, as is but evident on a reading thereof, was passed
on a petition as became preferred under Section 42 of the East Punjab
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Holdings (Consolidation and Prevention of Fragmentation) Act, 1948
(hereinafter for short called as the 'Act of 1948').
3. In the said petition, the petitioner had advanced two
claims. Firstly that he is a co-sharer in Khata 413/418, thus with the
respondents therein and thereby he asked for his share (supra) in the
khata (supra) being partitioned. The second contention as became
raised thereins related to the over valuations of the land, as became
allotted to him in the consolidation scheme, as, thereby land lesser than
his entitlement became allotted to him.
4. On the said petition, Annexure P-1 became rendered.
Through Annexure P-1, the Additional Director, Consolidation, Punjab
made an order of remand to the consolidation officer, with a direction
to him that he should determine whether the relevant disputed khasra
numbers have been wrongly over valued or not.
5. The Consolidation Officer, Hoshiarpur, in pursuance to
Annexure P-1, thus on the statements as became made before him, by
the litigants, whereins, they rendered their respective acceptances to the
proposed partition/separation of their share in the joint khata, rather
through Annexure P-3, thus proceeded to make the relevant
allotment(s).
6. Be that as it may, one Ashok Kumar son of Hans Raj who
became aggrieved from Annexure P-3, despite his father one Hans Raj
making a consensual statement in respect of the relevant partitionings
being ordered and which were so done through Annexure P-3, yet laid a
motion under Section 42 of the 'Act of 1948'.
7. On the said motion, as became preferred under Section 42
of the 'Act of 1948' as but is evident on a reading of Annexure P-7,
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therebys the Director Land Records, Punjab, Jalandhar remanded the lis
to the District Revenue Officer-cum-Consolidation Officer, with a
direction that after hearing the parties, by taking into account the
consolidation scheme, major portion of khasra No. 2113, if possible, be
partitioned between the present parties.
8. The learned counsel appearing for the petitioners has
argued that the impugned Annexure P-7 has impermissibly caused
review of Annexure P-3, and, in his making the said argument, the
learned counsel for the petitioners has made dependence, upon,
judgments rendered by this Court respectively in cases titled as
'Harbhajan Singh Vs. Karam Singh and Others', (1966 AIR
(Supreme Court) 641); 'Baldev Singh and Others Vs. Additional
Director, Consolidation of Holdings, Punjab and Another', (2005 (2)
R.C.R. (Civil) 351); 'Gurjinder Singh and Another Vs. State of
Punjab and Another', (2016 (3) R.C.R. (Civil) 342) ; 'Sukhbir Singh
and Others Vs. Assistant Director, Consolidation, Haryana and
Others', (2013 (33) R.C.R. (Civil) 275), 'Dharampal Vs. The Director
Consolidation Department, Haryana, Panchkula and Others', (2012
(67) R.C.R. (Civil) 939) and 'Gram Panchayat Village Kakarwal Vs.
Additional Director, Consolidation of Holding, Punjab and Others',
(2011 (52) R.C.R. (Civil) 527), whereins, it has been expostulated that
there is no power vested under the 'Act of 1948', thus in the statutory
authorities contemplated thereins, to make any review of orders passed,
on a petition cast under Section 42 of the 'Act of 1948'.
9. Though therebys the counsel for the petitioners may make
a well espousal for the quashing and setting aside of Annexure P-7.
Nonetheless irrespective of the above, since it is contended before this
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Court by the counsel for the respondents, that since through Annexures
P-1, P-3, and, even through Annexure P-7, there has been an
impermissible tinkering with the finalized consolidation scheme,
therefore, the said tinkering is barred by law as declared in a verdict
made by the Full Bench of 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, in the relevant
paragraph(s) thereof, para whereof becoming extracted hereinafter. In
the said extracted paragraph, it has been expostulated that where a
disputed question of title emerges in respect of the allotment(s) made to
the estate holders concerned in the finalized consolidation scheme,
thereby the said dispute is not required to be settled in proceedings
drawn under Section 42 of the 'Act of 1948' but rather is required to be
settled through the aggrieved accessing the learned Civil Court of
competent jurisdiction. Therefore, in view of the expostulations made
in the hereinafter extracted paragraph(s) as carried in the judgment
(supra), thereby through the Annexures (supra) there has been
impermissible tinkering with the finalized consolidation scheme.
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
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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,
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. Since the said judgment acquires the fullest sway and
clout, in respect of the impermissibility of tinkerings being made, rather
with the finalized consolidation scheme, and that too, through
invocation of jurisdiction cast under Section 42 of the 'Act of 1948'.
11. Moreover, when the said exercisings of jurisdiction, is only
limited to the creation of a path, when no consolidation path is created
or qua the said consolidation path being obstructed, and/or, is
exercisable only to undo clerical or arithmetical errors, as occur in the
consolidation scheme. However, the said jurisdiction does not extend to
any tinkerings being made with the finalized consolidation scheme.
12. In addition, if any challenge was to be made in respect of
the finalized consolidation scheme, especially relating to re-partitioning
or re-distribution of lands amongst the estate holders concerned, rather
the said challenge was to be laid in terms of Section 21 of the 'Act of
1948'. However, since the said remedy remained un-recoursed by the
aggrieved from the finalized consolidation scheme, whereas, rather his
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invoking the remedy under Section 42 of the 'Act of 1948' which
otherwise is unavailable to become recoursed, but excepting on the
above grounds.
13. Therefore, all the orders as enclosed in Annexure P-1, P-3
and P-7 are deemed to be made for want of valid jurisdiction becoming
vested in the authorities contemplated under Section 42 of the 'Act of
1948'. Resultantly , the argument (supra) as posed before this Court by
the learned counsel for the petitioners, that the orders (Annexure P-1
and P-3) were impermissible to be reviewed rather is a misfounded
argument and is rejected.
14. Even otherwise, if distribution(s) of lands were made to the
estate holders concerned, in terms of their entitlement(s) theretos and if
subsequently any of the joint khata holders, rather required that the
same be severed or dis-membered by metes and bounds. Resultantly,
the remedy for causing dis-memberment of the joint khata amongst the
co-khata holders concerned, was not the one envisaged under Section
42 of the 'Act of 1948', but was through an application for partition
becoming filed in terms of the relevant provisions, as carried in the
apposite Land Revenue Act.
15. It is also not known whether the suit lands were ancestral
coparcenary property or not. Since, only therebys the present petitioners
may become aggrieved. Therefore, for want of material (supra),
therebys too, they may not be, unless so proved in a regular partitioning
proceedings drawn under the Punjab Revenue Act, thus become entitled
to cause any severance of the joint khata. Moreso, in proceedings
drawn under Section 42 of the 'Act of 1948', especially when the said
proceedings rather cannot decide qua the said entitlement of the
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respondent concerned to cause dis-memberment of his share in the joint
khata.
16. Since the said application remained un-instituted rather a
mis-constituted motion under Section 42 of the 'Act of 1948' became
laid before the authorities contemplated thereins. Therefore, too the
motion cast under Section 42 of the 'Act of 1948' was barred, as
therebys no partitioning or dis-memberment of the joint khata amongst
the joint khata holders could be validly ordered.
FINAL ORDER OF THIS COURT.
16. In view of the above observation(s), this Court finds no
merit in the instant petition and rather in terms of the submissions
(supra) addressed before this Court by the learned Senior Deputy
Advocate General, Punjab and the learned counsel for respondent No.
3, this Court proceeds to quash Annexures P-1, P-3 and P-7, but leaving
liberty to the parties to appear before the Revenue Officer concerned,
with an application for making dis-memberment of the allotted joint
khata amongst the joint khata holders concerned.
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)
12.03.2024 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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