GRAM PANCHAYAT Vs. DIRECTOR CONSOLIDATION OF HOLDINGS

JUDGEMENT

(1.) THIS judgment shall dispose of Civil Writ Petition No. 9205 of 1992 and 8315 of 1993 since these two raise common questions of law and fact. In C.W.P. No. 8315 of 1993 Gram Panchayat, Jalajan seeks issuance of a writ of certiorari or any other appropriate writ, order or direction quashing the order dated 7.4.1992 passed by Director of Land Records, Punjab, exercising the powers under Section 42 of the East Punjab Consolidation of Holdings (Prevention of Fragmentation) Act, 1948. In the connected writ petition bearing No. 9205 of 1992 Bhagwan Singh and others have sought issuance of a writ of mandamus, prohibition, quo warranto or any other writ, order or direction commanding the respondents not to auction the land on 15.7.1992 as the same belongs to Khewatdars of the village in view of the law laid down by this Court in Joginder Singh and Ors. v. The Director, Consolidation of Holdings Punjab and Ors., A.I.R. 1989 P and H 234 (1988 P.L.J. 535). Facts have been taken from C.W.P. No. 8315 of 1993.

(2.) IT is the case of Gram Panchayat that land measuring 940 kanals 10 marlas comprised in khasra No. 149/153 was shown to be in the name of Shamlat Patti Jalajan, Hasab Pamana Hakiat. Similarly, land measuring 160 kanals was shown to be in the name of Shamilat Jalajan Hasab Pamana Hakiat comprised in Khewat No. 149/154. No person objected for keeping the said two different khurrahs separate and so the consolidation authorities on consolidation of holdings in the village granted new khurrahs in place of old one. According to the Gram Panchayat this land was being used for common purposes of the village and as a charand and so on coming into enforcement of Punjab Village Common Lands (Regulation) Act, 1954 the land comprised in these two Khurrahs was recorded in the name of Gram Panchayat and mutation to this effect was also sanctioned by the revenue authorities. Ever since then the same has remained in possession of the Gram Panchayat and is being used for common purposes of the village. Infact right from the year 1958 the part of it is being auctioned for leasing and the rent recovered from such an auction is being put for the benefit of the village community. None has objected to this till the passing of the impugned order by the Director dated 7.4.1992. It is with a view to grab the land and harm the interest of the village community that Bhagwan Singh and others-petitioners in the connected writ petition filed an application under Section 42 of the Act to the Director of Consolidation against the re-partition with a further prayer for partition of the land stated to be owned by the proprietary body but wrongly shown as Shamlat deh, which request has been accepted by the Director of Consolidation. Accordingly, petitioner prays for the quashing of order passed by Director of Consolidation, annexure P-2 being illegal, unjustified, unwarranted, without jurisdiction and void abinitio on the following grounds :

(3.) BROAD averments in the two writ petitions have been noticed. Admittedly, land measuring 940 kanals 18 marlas comprised in khasra No. 149/153 was shown in the name of Shamilat Patti, Jalajan, Hasab Pamana Hakiat and in respect of khasra No. 149/154 measuring 160 kanals to be in the name of Shamilat Jalajan Hasab Pamana Hakiat. This land was mutated in the name of Gram Panchayat on 24.9.1955 in view of the letter issued by the Punjab Government. Subsequent entries in the revenue record, record it as a Shamilat deh. During the consolidation of holdings in the village land comprised in the aforesaid two khewats were considered separately and new area allotted. Concededly, no grievance was made by the proprietors as regards their identity. So, ever since its vesting in the Gram Panchayat being a Shamilat Deh Gram Panchayat has been utilising the land as a charand and for other common purposes of the village as well as leasing the same and utilising the rent so recovered to meet the various demands of village community. As per averments made in C.W.P. No. 9205 of 1992 consolidation of holding of this village took place in the year 1952-53. Under Section 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 Government can of its own accord or on an application declare its intention to make a scheme for consolidation of holdings in such estate or estates or part thereof as may be specified. On publication in the estate concerned, Government is to appoint a Consolidation Officer who after obtaining in the prescribed manner the advice of the land owners of the estate or estates concerned and of the non-proprietors and the Gram Panchayat prepare a Scheme for the consolidation of holdings in such estate or estates or part thereof as the case may be. A Notification is issued by the Government in this regard. Under Section 16-A the authority could make provision in the Scheme to partition joint land and joint occupancy tenancy, under Section 17 it has powers for amalgamation of public roads within the Scheme for consolidation of holdings. Under Section 18 Consolidation Officer can direct that land assigned for any common purpose shall cease to be so assigned and can assign any other land in its place. Similarly, he has powers in case no land is reserved for any common purposes to include such land for a common purposes including extension of village abadi. Under Section 19 draft of the proposed Scheme is published and any person likely to be effected by such Scheme can file objections within 30 days of such publication in writing to the Consolidation Officer who after considering the objections, if any, submits the Scheme with such amendments as he considers to be necessary together with his remarks on the objections to the Settlement Officer (Consolidation). Under Section 20 the Settlement Officer has been given powers to confirm the scheme. On confirmation of the scheme the same is to be published in the prescribed manner in the estate/estates concerned. It is, therefore, that re-partition proceedings commence. Under Section 21 aggrieved person can file objection to re-partition and still dissatisfied file an appeal before the Settlement Officer and a further appeal before the Assistant Director of Consolidation. No such objection appears to have been filed by Bhagwan Singh and others-writ petitioners in C.W.P. No. 9205 of 1992 or by any other aggrieved person against the re-partition of the holdings. It is for the first time that a petition under Section 42 of the Act has been filed by Bhagwant Singh on 6.6.1991. Vide this petition grievance has been made of the re-partition as effected with a further prayer for partition of land which has been wrongly shown as Shamilat deh. According to the Director such land could not be-allotted in the name of Gram Panchayat as the same did not fall within the ambit of Shamilat deh as per Section 2(g) of Village Common Lands Act of 1961 and so these entries in revenue record does not in any manner affect the right of the proprietors to get it partitioned according to their shares which relief can be appropriately granted to Bhagwan Singh and his like by making the necessary amendment in the Scheme. The Director further held that there is no need for the petitioner to approach the Collector under Section 11 of the Punjab Village Common Lands Act. This way petition was accepted and case remanded to the Consolidation Officer with a direction that he may take action in confirmity with points highlighted in the order.