BISHAN DEVI Vs. POORAN DEVI

JUDGEMENT

(1.) The appellant, Smt. Bishan Devi, filed an application under Section 21(2) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act) before the Consolidation Officer for making certain changes in the scheme which had been confirmed by the Settlement Officer under Section 20(3) of the Act on November 14, 1959. This application was dismissed on February 12, 1960, and against that order, she went up in appeal to the Settlement Officer, which was dismissed on June 8, 1960. She then filed a petition under Section 42 of the Act, which was allowed by the Additional Director, Consolidation of Holdings, Punjab on June 10, 1963. Smt. Puran Devi, respondent, filed a petition under Articles 226 and 227 of the Constitution challenging that order. Respondents 2 to 7 got themselves impleaded as petitioners alongwith Smt. Puran Devi by making Civil Misc. Nos. 762 and 763 of 1964, which were allowed by Jindra Lal, J., on April 15, 1964. That petition was accepted by the learned Single Judge on December 20, 1965, and the present appeal under Clause 10 of the Letters Patent has been filed against that order by Smt. Bishan Devi.

(2.) The first objection raised before the learned Single Judge was that the petition under Section 42 of the Act was barred by time and, therefore, the Additional Director could pass no order thereon and the order passed on a time-barred petition was without jurisdiction. The learned Single Judge did not accept this submission on the ground that none of the parties had stated the date of the petition under Section 42 of the Act, and, therefore, it would be presumed that it was made within time. The learned Single Judge, however, accepted the writ petition on the ground that the Additional Director could not amend the scheme in the petition under Section 42, which had been filed before him. The reason stated is that the appellant did not file any petition under Section 42 of the Act against the scheme that was originally sanctioned by the Settlement Officer under Section 20(3) of the Act, and, therefore, it could not be amended in a petition under Section 42 of the Act filed against the order of the Settlement Officer under Section 21(3) of the Act. The learned Single Judge was also of the opinion that the Additional Director could modify the scheme in exercise of his suo motu powers under Section 42 of the Act, but he did not do so. We are of the opinion that the learned Single Judge was in error in holding that the Additional Director could not modify the scheme when proceedings were taken before him under Section 42 of the Act against the order of the Settlement Officer passed under Section 21(3) of the Act even if no petition under Section 42 of the Act was filed against the order of the Settlement Officer confirming the scheme under Section 20(3) of the Act. Any rightholder feeling aggrieved from the scheme or repartition can take proceedings under various sub-sections of Section 21 and Section 42 of the Act. Once he reaches the stage of Section 42 and the Additional Director gets scisin of the case, he has the jurisdiction to amend or modify the scheme even in respect of an individual rightholder. It was held by a Full Bench of this Court in Hardial Singh and others v. The Director of Consolidation of Holdings and others, 1970 PunLJ 121, that (i) a scheme of consolidation can be amended under Section 42 of the Act in an individual case and the amendment need not necessarily be actual re-writing of a particular provision of the scheme, and (ii) that it is proper and adequate compliance with the proviso to Section 42 of the Act if a change or amendment or variation in a scheme of consolidation is made after the authority making the same has before its mind the particular provision of the scheme to be thus affected and the arguments of the parties with regard to the effect of the change. Once the matter is present to the mind of the authority exercising power under Section 42 of the Act, and after considering the relevant provision of the scheme, it gives a decision or makes an order, that is sufficient compliance with the proviso to Section 42 of the Act and no more is required. The order of the Additional Director in the instant case shows that he went round the area involved and found that it should have been valued at annas -/6/- instead of annas -/12-. He accordingly amended the scheme to that extent, that is, changing the value from annas -/12/- to annas -/6/- of the land involved according to the report of the Assistant Consolidation Officer with which he agreed after inspecting the area. After amending the scheme, he made further changes in accordance therewith. It is thus obvious that the provisions of the scheme were before the learned Additional Director which he amended in respect of the area involved in the petition under Section 42 of the Act before him. He thus consciously amended the scheme which was within his power and jurisdiction. Consequently, no fault could be found with the order of the learned Additional Director impugned in the writ petition.

(3.) The result is that this appeal is accepted and the writ petition of respondents 1 to 7 is dismissed with costs throughout, to be paid by respondents 1 to 7 to the appellant. Counsel's fee Rs. 100 each in the writ petition and the appeal. I agree. Appeal accepted.