BHUPINDER SINGH MANN Vs. STATE OF PUNJAB ETC

JUDGEMENT

(1.) This is a petition under Articles 226 and 227 of the Constitution for the issuance of a writ of certiorari quashing the impugned order (Annexure B) dated January 24, 1973, by the Consolidation Officer, and the order (Annexure E) dated September 12, 1973, of the Additional Director, Consolidation. It was heard by me on November 1, 1977, when none appeared on behalf of any of the respondents. The petition was allowed vide my order dated November 1, 1977. Letters Patent Appeal against the same was also dismissed in limine. This order was challenged by respondent No. 3, Shrimati Gurbachan Kaur in the Supreme Court vide Civil Appeal No. 3183 of 1979, which has been allowed vide order dated November 7, 1979. As a consequence, the case has been remanded and the writ petition is to be heard de novo and decided after hearing the learned counsel on both sides. It is in these circumstances, that the case has been heard. None appears on behalf of the State, the Consolidation Officer and Shri Ram Rakha, respondent No. 4. However, arguments have been addressed by the learned counsel for the petitioner and Shrimati Gurbachan Kaur, respondent No. 3 at great length.

(2.) The consolidation of holdings under the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation Act), (hereinafter called the Act), took place in the revenue estate of Batala East. In pursuance of the confirmed scheme, repartition of holdings took place. The petitioner was allotted land as owner including Khasra Nos. 55/4/1 7/2, 8/2, 34 and 47/63, bearing Khata No. 360 and Khatauni No. 481. An objection petition was filed by respondent No. 3, under Section 21(2) of the Act, on August 20, 1966, in which after hearing the petitioner, order (Annexure C) was passed by the Consolidation Officer, Amritsar on October 7, 1966. The case of the respondent was that the path should be provided from the South-West corner of Killa No. 55/13 and connected with the old passage as well as the Eastern corner of Southern Killa No. 281 urban, for the purpose of securing the respondent her own area. The petitioner was agreeable to the same. The respondent had also raised some objection regarding the allotment of some of her area to the shamilat. The Consolidation Officer, in his order (Annexure C) withdraw some area from the allotment of the petitioner and respondent No. 3 and included the same in their allotment respectively. Its perusal shows that the exchange of the areas between these two parties had been ordered with regard to three killa numbers. Some time towards the end of 1972 or the beginning of 1973, a petition was filed by respondent No. 3 before the Consolidation Officer under Section 43-A of the Act, for the correction of the revenue record in accordance with the order (Annexure C) so far as she was concerned. In this petition, the petitioner did not put in appearance in spite of service. After hearing all those who were present including respondent No. 3, order (Annexure B) was passed by the Consolidation Officer on January 24, 1973, according to which some areas pertaining to a number of khasra numbers were ordered to be exchanged between the petitioner and respondent No. 3. The petitioner feeling aggrieved against this order filed a petition under Section 42 of the Act which was dismissed by the Additional Director, Consolidation, by his order dated September 12, 1973 (Annexure E). In the present writ petition, both the orders of the Consolidation Officer and the Additional Director, Consolidation (Annexure B and E respectively), are sought to be quashed.

(3.) The case of the petitioner is that the order of the Consolidation Officer, dated October 7, 1966 (Annexure C) had been passed on the basis of an agreement between the petitioner and respondent No. 3 according to which only one kanal 8 marlas of land comprised in khasra Nos. 55/34 south-east corner, 55/8 south-east corner and 55/4 south-east corner was excluded from the land of the petitioner and was allotted to respondent No. 3. In lieu thereof, 2 kanals of land from khasra Nos. 55/3 north-west corner and 55/7 north-west corner belonging to respondent No. 3, was taken out and included in the land of the petitioner. This order was passed on October 7, 1966. Respondent No. 3 apparently remained satisfied with the implementation of the same as the objection petition was filed only some time in 1972/1973. The Consolidation Officer vide order dated January 24, 1973 (Annexure B) under the purported exercise of powers under Section 43-A of the Act under the garb of implementing his previous order dated October 7, 1966 (Annexure B) ordered drastically the change of land between petitioner and respondent No. 3 with regard to khasra Nos. 55/4/1, 55/8/2, 55/3/1 and 47/24, covering a much larger area than was contemplated in the previous order of 1966. It was urged that under Section 43-A of the Act, only clerical or arithmetical mistakes in the order could be corrected, but the impugned order (Annexure B) is clearly an order of review of the previous order (Annexure B) which the Consolidation Officer had no jurisdiction to do. The Additional Director, Consolidation, in his order (Annexure E) also did not consider this aspect of the question. According to the learned counsel for the petitioner, even if the order of the Consolidation Officer passed in 1966 (Annexure C) had not been implemented by the concerned authorities, so as to bring about requisite changes in the revenue record with regard to the areas allotted to the petitioner and respondent No. 3, the proceedings under Section 43-A of the Act were not the proper remedy for the purpose.