GURCHARAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This order will dispose of two connected petitions, i.e. Civil Writ No. 2136 of 1966 - Gurcharan Singh V. State of Punjab etc. and Civil Writ No. 2572 of 1966 - Lakha Singh and others V. State of Punjab and others. In both these petitions, the order of the Additional Director. Consolidation of Holdings, Punjab, Patiala, dated February 11, 1966 (Annexure 'D') has been impugned on the ground that the same was without jurisdiction as the Additional Director had already disposed of an earlier petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (50 of 1948) (hereinafter called the Act), by his order Annexure 'C' dated February 9, 1966, which was also in proceedings between the same parties. Mr. Balbir Singh Wasu, the learned counsel for the writ petitioners in both these cases has relied upon a Division Bench judgment of this Court (Shamsher Bahadur and Pandit, JJ.) in Sadha Singh Lambardar and others V. The State of Punjab and others, 1968 1 ILR(P&H) 378. What happened in Sadha Singh Lambardar's case was this. After the repartition was published some of the right-holders filed objections and later on appeals and revision petitions under Section 21(2), (3) and (4) and Section 42 of the Act. In the meantime, certain right-holders made a petition to the Minister in charge of Consolidation Department against the consolidation operations in the village. The Consolidation Officer, Flying Squad, pointed out certain defects and reported that revision of valuation was essential. The Settlement Officer endorsed the view of the Consolidation Officer. The Additional Director finally held that the valuation in the village was most defective. He, therefore, revoked the consolidation scheme of the village from the valuation stage. Against the abovesaid order of the Additional Director, a writ petition was filed in this Court. When the case came up before me sitting in Single Bench, it was argued that the Additional Director had by passing the abovesaid order indirectly reviewed his previous order based on the petition filed earlier by some other right-holders of the village under Section 42 of the Act, wherein he had declined to interfere with the repartition proceedings. It was held by me that none of the previous petitions which were decided by the Additional Director related to any objection against the consolidation scheme, and that the said previous orders had been passed in proceedings relating to repartition pertaining to particular allotments in individual cases. Inasmuch as the matter of valuation had not been involved in the earlier cases, it was held by me that the previous petitions were not in respect of the same matter about which grievance was made in the latter proceedings under Section 42 of the Act. While reversing the above-said judgment, the learned Judges of the Letters Patent Bench first referred to the undisputed proposition of law to the effect that the Additional Director had no power of review except on specified grounds (like clerical or arithmetical errors etc.), and then went into the question as to whether the impugned order amounted to a review of the previous orders passed by the Additional Director under Section 42 of the Act, or not. The learned Judges found that the effect of the subsequent order was that the previous order of the Additional Director declining to interfere with the repartition at the instance of some right-holders stood automatically reversed. Since this had happened, it was held that the previous orders had been indirectly revised and hence reviewed by the Additional Director. The Division Bench has clearly laid down that the party at whose instance the earlier or the subsequent proceedings took place or the ground on which the two orders were passed are not relevant for deciding whether the subsequent order amounted to a review of the earlier order or not. As already stated it was held on the facts of that case that in passing the impugned order, the Additional Director had reviewed his previous order under Section 42 of the Act. The writ petition was, therefore, allowed on that ground. It is significant to note that while allowing the petition, the learned Judges set aside the impugned order "only in so far as it would, in any way, affect the previous orders passed by the Additional Director under Section 42 of the Act which had become final between the parties to those cases,"

(2.) In the case before me the first order was passed at the instance of Gurcharan Singh petitioner. The claim made by the petitioner in those proceedings under Section 42 of the Act was that Killa Nos. 28/24 and 17 should be taken away from him as those Killas did not contain his major portion area. The learned Additional Director held that only a part of the major portion of Bauria Singh respondent No. 5 had come in Killa No. 24 which did not justify any change. At the desire of the petitioner, however, certain changes were ordered to be effected between Gurcharan Singh etc. on the one hand and Bauria Singh respondent No. 5 on the other, in which Killas numbers concerned were 28/17, 28/2, 28/21 and 17/1. The petition under Section 42 was allowed to that extent and possessions were ordered to be changed after harvesting the Rabi 1965-66 crop. The subsequent order which has been impugned in the instant case was passed on an application moved by Bauria Singh respondent No. 5 under Section 42 of the Act. The only point which was pressed on behalf of the said respondent in those proceedings was that he should be provided with a watercourse on the western side of Killa Nos. 42/8 and 13 on the ground that he could not irrigate his land on the eastern side without the said watercourse. This contention of respondent No. 5 prevailed with the Additional Director. It was, therefore, directed in the impugned order that the watercourse on the western side of Killa Nos. 42/8 and 13 be given to respondent No. 5, but the petitioner would be allowed to utilise the said watercourse whenever he required to take water to Killa No. 42/4/2 etc. in his own land. To this extent the application of respondent No. 5 under Section 42 was allowed by the impugned order.

(3.) In view of the authoritative pronouncement of the Division Bench in Sadha Singh Lambardar's case , the crucial question in this case is whether the earlier order of the Additional Director (Annexure 'C') is in any manner varied, amended or effected by the subsequent order, dated February 11, 1966. If the answer to the above question happens to be in the affirmative, the writ petitions must succeed. If, however, it is found that the subsequent order not only dealt with a different matter which was not even impliedly concerned in the first proceedings, but did not in any manner affect the previous order and both the orders can stand side by side without affecting each other, the question of the Additional Director having reviewed his earlier order would not, in my opinion, arise. Mr. Wasu, the learned counsel for the writ petitioners in these cases, contended that inasmuch as the repartition stood automatically confirmed after the disposal of the first application under Section 42 of the Act, the jurisdiction of the State Government under Section 42 of the Act stood exhausted, and the Additional Director could not, therefore, allow any other application under Section 42 of the Act thereafter, even if it related to a different matter. I have not been able to agree with this contention. In Sadha Singh Lambardar's case, the effect of the order impuged therein was that the entire repartition stood set aside and de novo consolidation proceedings were ordered from the valuation stage. The obvious result of those orders was that the previous judgment of the State Government declining to interfere with the repartition stood annulled and reversed. No such thing has taken place in the present case. It appears to me too much to argue that once an order under Section 42 of the Act is passed in respect of any matter relating to any party concerning repartition in the village, no other application under Section 42 of the Act can be allowed thereafter which also relates to repartition, though it may not concern those parties or the land which was the subject-matter of the first application. Interpreting the scope of Section 42 of the Act in that manner would imply that two colluding right-holders may have an application under Section 42 of the Act relating to repartition in the village decided from an Additional Director so as to take away the jurisdiction of the State Government from passing any order in relation to other parts of the repartition between different or other parties in subsequent proceedings. Such a result does not appear to have been intended by the Legislature while enacting Section 42 of the Act. Nor does such a result appear to follow from the dictum of the Supreme Court in Roop Chand V. The State of Punjab and another, 1963 65 PunLR 576, or from the Full Bench judgment of this Court in Deep Chand and another V. Additional Director, Consolidation of Holdings, Punjab. Jullundur and another, 1964 66 PunLR 318. The crucial test to be applied for deciding the issue before me is to find out as to what would be the effect of an order which may possibly be passed in this case in terms of the final order made by the Division Bench in Sadha Singh Lambardar's case. The only possible order can be :