SARWAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This order will also dispose of Civil Writ Petitions Nos. 3237 of 1987, 4498 of 1985 and 3787 of 1986 as the question involved is common in all the cases.

(2.) In Civil Writ Petition No. 2974 of 1985, the petitioners claim themselves to be the residents and inhabitants of village Ballpur, Tehsil Sirhind, District Patiala. According to the averments made in the writ petition, they have been cultivating the land under the Gram Panchayat, respondent No. 2, and the same has been described in the revenue record as shamilat owned by the Gram Panchayat. They being the lessees under the Gram Panchayat are challenging the order of the Director, Consolidation of Holdings, dated May 7, 1985, passed by him under Section 42 of the Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (hereinafter called the Act). That was a petition filed by Hardev Singh and others against the Gram Panchayat of the village. According to Hardev Singh and others, they had their shares in the Shamilat deh and were entered in the cultivation column as maqbuza malkan which was of two kinds, banjar qadim and ghair mumkin. It was recorded in the wazibularz of the Jamabandi just before the consolidation proceedings started that the banjar qadim land is liable to be distributed according to the shares and the ghair mumkin area could not be distributed. Their contention before the Director was that the consolidation authorities were not competent to change the title of the right-holders and that whatever was entered in the wazibularz of the Jamabandi had to be made a part of the scheme of the village and had to be adhered to by the consolidation authorities during repartition proceedings. They also challenged the mutation No. 547 dated July 19, 1956. According to them, the transfer of the land of the right holders to the Gram Panchayat was non est and illegal. The learned Director, Consolidation, accepted their contention and found that the Panchayat cannot lay claim to this area because the area is mentioned in the Jamabandi to be in possession of the khewatdars, i.e the right holders. That being so, the Panchayat has no right to this land. It is clearly mentioned in the wazibularz that the banjar qadim is liable to be distributed. This fact has not been mentioned in the scheme and this is certainly an omission on the part of the consolidation authorities. Also mutation No. 547 dated 19.7.56 is non est and illegal as it is not based on any legal document and hence is ignored. Consequently, the plea of the petitioners was accepted and the case was remanded to the Consolidation Officer concerned with a direction that he should allow 20 acres of the area to Gram Panchayat and the rest of the banjar qadim area out of the total 3,287 kanals 8 marlas should be partitioned amongst the rightholders. According to the petitioners, since they were in possession of the suit land as the lessees under the Gram Panchayat, they were entitled to be heard before any other could be passed adversely affecting them. Since no such opportunity was given to them, nor they were parties to the petition under section 42 of the Act, the said order was liable to be quashed on this ground alone. In support of the contention, that the petitioners had the locus standi to file the petition, reference was made to Fertilizer Corporation Kamagar Union Regd. Sindri V. Union of India, 1981 AIR(SC) 344; Syedabad Tea Co. Ltd. V. State of Bihar, 1983 AIR(SC) 72, Gram Panchayat of village Serohi Behali V. Har Lal, 1971 73 PunLR 1009and Narinder Sachdeva V. Bhajan Lal,1982 PunLJ 243. According to the learned counsel the view taken by the Division Bench in Joginder Singh V. The Director, Consolidation of Holdings, 1988 PunLJ 535, requires consideration as it is in conflict with the earlier Division Bench judgment of this Court in Narinder Nath Sachdeva's case .

(3.) It is no more disputed that this very contention was raised by the petitioners who claimed themselves to be the lessees under the Gram Panchayat and challenged the order of the Director, Consolidation, passed under Section 42 of the Act, which contention was replied by the Division Bench in Joginder Singh's case , with the observations :