Punjab-Haryana High Court
Baldev Singh & Ors vs Director Consolidation Pb. & Ors on 23 November, 2022
Author: Lisa Gill
Bench: Lisa Gill
CWP No. 17632 of 1995 (O&M) and CWP No. 5149 of 2007 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 17632 of 1995(O&M)
Date of Decision:24.11.2022
Baldev Singh and others
......Petitioners
Versus
Director Consolidation Punjab and others
...... Respondents
AND
CWP No. 5149 of 2007(O&M)
Dev Raj and others
.....Petitioners.
Versus
State of Punjab and others
......Respondents.
CORAM:- HON'BLE MRS.JUSTICE LISA GILL
HON'BLE MRS. JUSTICE RITU TAGORE
Present: Mr. S.D.Sharma, Sr. Advocate
with Mr. Chirag Suri, Advocate
for the applicant-petitioners (in CWP No. 17632 of 1994).
Mr. Amit Jain, Sr. Advocate
with Mr. Dhruv Mittal, Advocate
for the petitioners (in CWP No. 5149 of 2007)
Mr. K.S.Kang, Sr. DAG., Punjab.
Mr. Jatinder Singla, Advocate
for respondent no.2 (in CWP No. 17632 of 1994 and
for respondent no.4 (in CWP No. 5149 of 2007).
*****
LISA GILL, J(Oral).
This order shall dispose of CWP No. 17632 of 1995 and CWP No. 5149 of 2007 as the challenge in both the writ petitions is to order dated 31.10.1995, Annexure P-11, passed by the Director, Consolidation of For Subsequent orders see CWP-5149-2007 Decided by HON'BLE MRS. JUSTICE LISA GILL; HON'BLE MRS. JUSTICE RITU TAGORE 1 of 8 ::: Downloaded on - 26-12-2022 14:40:10 ::: CWP No. 17632 of 1995 (O&M) and CWP No. 5149 of 2007 (O&M) 2 Holdings, Punjab, Jalandhar.
Both the writ petitions are taken up together for hearing and decision at request and with consent of learned counsel for the parties.
Brief facts necessary for adjudication of the petitions, as pleaded, are that petitioners in both the writ petitions claim to be the right holders/proprietors of village Akar, District Patiala. It is pleaded that the land in question measuring 1396 Bigha-07 Biswas belonged to the proprietors as per 'Sharat Wajub-Al-Araz' with entry in the column of ownership recorded as 'Shamlat Deh Hasab Rasad Zar Khewat' and in the column of cultivation as 'Maqbooza Malkan'. It is stated that the land in question belonged to the proprietors jointly and nature of the land is recorded as 'Banjar Quadim'. Consolidation of land holdings in village Akar took place in the year 1956 and in the 'Misl Haqiat', Nagar Panchayat was recorded as the owner and in the column of cultivation, the proprietors were reflected. Mutation no. 386 was sanctioned in this respect. It is stated that out of total land of 1396 Bighas 07 Biswas, a cut of 38 K 18 M was applied for the use of common purposes such as cremation ground, hadda rori, place of worship, school, paths etc. Petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short 'the Consolidation Act'), was filed by some of the residents of village Akar, District Patiala. The Director, Consolidation, Punjab, vide order dated 13.12.1985 held mutation no. 386 dated 12.06.1956 to be illegal, nonest, thus not conferring any right or title. The Consolidation Officer was directed to distribute the land measuring 2263 K 16 M among the share holders according to their shares.
Gram Panchayat challenged order dated 13.12.1985 by way of CWP No. 147 of 1986, which was dismissed in limine on 29.08.1986. SLP For Subsequent orders see CWP-5149-2007 Decided by HON'BLE MRS. JUSTICE LISA GILL; HON'BLE MRS. JUSTICE RITU TAGORE 2 of 8 ::: Downloaded on - 26-12-2022 14:40:10 ::: CWP No. 17632 of 1995 (O&M) and CWP No. 5149 of 2007 (O&M) 3 No. 11716 of 1986 filed by the Gram Panchayat Village Akar was dismissed by the Hon'ble Supreme Court on 06.04.1987. Persons impleaded as private respondents in the present writ petitions, who took the land in dispute on lease on yearly basis from the Gram Panchayat, challenged order dated 13.12.1985 passed by the Director, Consolidation of Holdings, Punjab, by way of CWP No. 564 of 1986, on the ground that they being interested parties were not heard before passing of order dated 13.12.1985. Said writ petition was dismissed by this Court on 08.08.1988. Civil Appeal nos. 3427- 28 of 1990 filed by the private respondents was disposed of by the Hon'ble Supreme Court on 12.04.1994 holding that the appellants therein had acquired some rights which need to be protected. Resulantly, impugned orders passed by the Director as well as the judgment of this High Court were set aside and the matter remanded back to the Director for being disposed of afresh after hearing the appellants therein as well as all other necessary parties. It is further observed in order dated 12.04.1994, passed by the Hon'ble Supreme Court that the Director before passing appropriate orders would consider whether any or all of the appellants in civil appeal were in possession of the land as tenants and if so, how their rights can be protected even if title to the land is to be decided in favour of the respective share holders.
Pursuant to order dated 12.04.1994, passed by the Hon'ble Supreme Court, impugned order dated 31.10.1995 was passed by the Director Consolidation of Holdings, Punjab, Jalandhar. Petition under Section 42 of the Consolidation Act, filed by the share holders/proprietors was dismissed while observing that the Director while exercising powers u/s 42 of the Consolidation Act, is only to examine the legality and propriety of any order/scheme or repartition done during the consolidation proceedings For Subsequent orders see CWP-5149-2007 Decided by HON'BLE MRS. JUSTICE LISA GILL; HON'BLE MRS. JUSTICE RITU TAGORE 3 of 8 ::: Downloaded on - 26-12-2022 14:40:10 ::: CWP No. 17632 of 1995 (O&M) and CWP No. 5149 of 2007 (O&M) 4 and is not competent to decide the question of title of the parties.
Aggrieved therefrom, CWP No. 17632 of 21995 was filed by the petitioners therein in December 1995. CWP no.17632 of 1995 was admitted for final hearing on 16.05.1996 and CWP No.5149 of 2007 filed subsequently was admitted on 20.10.2008.
Stand of the respondent-Gram Panchayat is that the land in question clearly vests with it. Mutation was rightly sanctioned in favour of the Gram Panchayat by the Consolidation Authorities and Nagar Panchayat is rightly reflected in the column of ownership. Therefore, stand taken by the share holders is absolutely illegal and unjustified and moreover, there is no ground for interference by the Director, Consolidation, in a petition under Section 42 of the Consolidation Act as there was no illegality or impropriety which was required to be corrected by the Consolidation Officer.
Heard learned counsel for the parties.
Section 42 of the Consolidation Act reads as under:-
"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 this Act], call for and examine the record of any case pending before or disposed of by such officer and may pass such 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."
Learned senior counsel for the petitioners are unable to deny the settled position of law that Section 42 of the Consolidation Act empowers For Subsequent orders see CWP-5149-2007 Decided by HON'BLE MRS. JUSTICE LISA GILL; HON'BLE MRS. JUSTICE RITU TAGORE 4 of 8 ::: Downloaded on - 26-12-2022 14:40:10 ::: CWP No. 17632 of 1995 (O&M) and CWP No. 5149 of 2007 (O&M) 5 the State or its delegate to satisfy itself as to the legality or propriety of any order passed or scheme prepared during consolidation and to correct any error committed during consolidation, but does not empower the authority to decide a disputed question of title.
Arguments addressed in Parkash Singh and others Vs. Joint Development Commissioner, Punjab and others, 2014 (2) R.C.R (Civil) 721 were encapsulated by the Full Bench of this High Court as under :-
"The arguments addressed by counsel for the parties, appear to 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."
For Subsequent orders see CWP-5149-2007 Decided by HON'BLE MRS. JUSTICE LISA GILL; HON'BLE MRS. JUSTICE RITU TAGORE 5 of 8 ::: Downloaded on - 26-12-2022 14:40:10 ::: CWP No. 17632 of 1995 (O&M) and CWP No. 5149 of 2007 (O&M) 6 While answering the question raised, Full Bench of this High Court in the abovesaid case held as under:-
"Accepting for a moment that power conferred by Section 42 of 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 For Subsequent orders see CWP-5149-2007 Decided by HON'BLE MRS. JUSTICE LISA GILL; HON'BLE MRS. JUSTICE RITU TAGORE
6 of 8 ::: Downloaded on - 26-12-2022 14:40:10 ::: CWP No. 17632 of 1995 (O&M) and CWP No. 5149 of 2007 (O&M) 7 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 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 xxxxx We, therefore, hold that:- (a) Consolidation authorities, are tribunals of limited jurisdiction; (b) Consolidation authorities exercise powers of revenue officers, under the 1887 Act, a power to record and update fiscal entries and prepare record of rights; (c) but are not empowered to decide a question of title or vest/divest a party of its title; (d) the only authority empowered to determine a question, whether the land is "Shamilat Deh", between a Gram Panchayat and a private individual was the Civil Court but after enactment of Sections 11, 13 and 13-A of the 1961 Act, the Collector and; (e) if the land is "Jumla Mushtarka Malkan", an appropriate forum."
Faced with the above, learned counsel for the petitioners submit that petitioners be afforded an opportunity to approach the Collector by way of filing a petition under Section 11 of the Punjab Village Common Lands (Regulation) Act, and delay, if any, in filing of the same be condoned, keeping in view pendency of present writ petitions.
No other argument has been raised.
Keeping in view the facts and circumstances as above, we find no ground for setting aside order dated 31.10.1995. Writ petitions are accordingly dismissed. However, in case, petitioners approach the competent For Subsequent orders see CWP-5149-2007 Decided by HON'BLE MRS. JUSTICE LISA GILL; HON'BLE MRS. JUSTICE RITU TAGORE 7 of 8 ::: Downloaded on - 26-12-2022 14:40:10 ::: CWP No. 17632 of 1995 (O&M) and CWP No. 5149 of 2007 (O&M) 8 authority by way of an appropriate petition accompanied by an application for condonation of delay within four weeks of receipt of certified copy of this order, the competent authority shall consider the said application for condonation of delay sympathetically in accordance with law.
( LISA GILL ) JUDGE (RITU TAGORE) November 24, 2022. JUDGE s.khan Whether speaking/reasoned : Yes/No. Whether reportable : Yes/No. For Subsequent orders see CWP-5149-2007 Decided by HON'BLE MRS. JUSTICE LISA GILL; HON'BLE MRS. JUSTICE RITU TAGORE 8 of 8 ::: Downloaded on - 26-12-2022 14:40:10 :::