Hans Raj and Another vs Jaspal Singh and Others

P.C. Pandit, J.—This petition under Article 226 of the Constitution has been filed by Hans Raj and his mother, Smt. Jagwanti, and is directed against the order dated 23rd October, 1963 passed by the Additional Director, Consolidation of Holdings, Punjab, Chandigarh, respondent No. 1.

The petitioners Ajaib Singh and his three brothers, Sahib Singh, Dyal Singh and Malkiat Singh, respondents 2 to 5, Kharaiti Lal, respondent No. 6, and Bhagwan Singh, respondent No. 7, were right holders in village Malukpur, Tehsil Fazilka, District Ferozepore The consolidation proceedings commenced in this village in April, 1961. The scheme of consolidation was published on 30th June, 1962 in consultation with the right holders of the village and the same was confirmed by the Settlement Officer on 28th August, 1962. Paragraph 10 of clause (b) of Part VI of the scheme provided that any corrections in the khasra girdwaris after that date would not affect the major portion of any rightholder. It was also motioned in this scheme that any rightholder, who had got a higher percentage of his area at any place, would not be shifted. In the repartition proceedings, that followed the confirmation of the scheme, the petitioners and respondents 2 to 6, were rightly fitted on their major portions. According to the petitioners, respondents 2 to 5 colluded with their real uncle. Jangir Singh, and secured correction of khasra girdawari in respect of field Nos. 1167/360/361 measuring 18 bighas and 3 biswss comprised in khewat No. 5/9, khataunis Nos. 220 and 221, situate in this village, by mutual consent on 24th October, 1962 from the Assistant Collector, Second Grade, Fazilka. This was done in order to take undue advantage by getting their major portion changed and obtaining land near the abadi in place of their own major portion which wis situate at a distance of 2 miles from the village abadi. Thereafter, Malkiat Singh, respondent No. 5, made an application u/s 21(2) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948 (hereinafter referred to as the Act) to the Consolidation Officer, Abohar, to the effect that his major portion be changed according to the changed khasra girdawari. The Consolidation Officer, however, refused this request, because the respondents had bean rightly fitted in their major portions. Respondents 2 to 6 then filed an appeal before the Settlement Officer u/s 21(3) of the Act, but the same was dismissed by him on 29th July, 1963 on the ground that the correction in the khasra girdawari was made after the scheme had been finalised and the change asked for by these respondents was against the provisions of the scheme. Respondent No. 2 then alone filed an application u/s 42 of the Act and the same was accepted by respondent No. 1 by means of the impugned order. Therein he remarked that there was a provision in the scheme that the major portion should be determined according to the existing girdawari and any girdawari done after the consolidation would not be taken into account. In the instant ease, however, he found that the existing girdawari was wrong in view of the correction ordered to be made by the Assistant Collector, Second Grade, Fazilka, by his order dated 24th October, 1962. In view of that order, he made the changes in the areas allotted to the petitioners and the respondents. This naturally affected the interest of the petitioners and that has resulted in their filing the present writ petition.

It is the common case of the parties that the scheme had been framed with the consent of all the right-holders of the village and the same was confirmed by the Settlement Officer on 28th August, 1962. It is again not disputed that i(sic) was clearly provided in that scheme that from that date the correction of khasra girdawari would not affect the major portion of any rightholder. This was presumably done in order to safeguard the interests of the rightholders during the pendency of the consolidation proceedings against the changes in the khasra girdawari, which could be got effected by the rightholders either mala fide or otherwise. It is again the common case of the parties that the impuened order is based on khasra girdawaris, which were corrected after the scheme was confirmed. It is beyond doubt that the repartition has to be done in accordance with the provisions of the confirmed scheme. The respondents very well knew that a provision was being nude in the scheme to the effect that no correction in the khasra girdawari effected after the confirmation of the scheme would be taken into consideration. If they felt that the entries in the khasra girdawaris in their case were wrong, they could have got them corrected before the confirmation of the scheme. But, admittedly, this was not done. Respondent No. 1 could not set aside the orders of the Settlement Officer and the Consolidation Officer on the basis of the corrected khasra girdawaris, which according to the provisions of the scheme itself, could not be taken into consideration. His order, therefore, is clearly erroneous in law and it has resulted in manifest injustice to the petitioners, who had their original holding very near to village abadi and now had been given land of respondents 2 to 5 at a distance of 2 miles from the abadi. It is admitted by the State that the petitioners had no land of their own previous to repartition at the place where they have now been given 115 kanals and 14 marlas by respondent No. 1 The percentage of their area was 67 per cent near the village abadi, whereas that of respondents 2 to 5 was much less and it is, therefore, that the latter had been fitted at their own area away from the village abadi by the Consolidation Officer and the Settlement Officer. One of the petitioners, namely, Silt. Lajwanti, is a widow and it would be difficult for her to manage the land, which is being given to her by respondent No. 1 at the distance of about two miles from the abadi. It is again admitted by the State that if the correction in the khasra girdawari was not to be taken into account, then the petitioners had the right to be fitted over the land given to them u/s 21(1) because of their higher percentage.

In view of what I have said above, I am of the view that there is an error of law apparent on the record, which has resulted in great injustice to the petitioners, and the impugned order therefore, deserves to be set aside.

It was contended by the learned counsel for the State that u/s 42 of the Act, the Additional Director was competent to make an order for the alteration in the scheme and that is what he has done in the present case.

There is no merit in this contention, because, firstly, respondent No. 1 has not said so in the impugned order; secondly, no such prayer was made to him by the respondents in this respect and, thirdly it is again a doubtful point whether the Additional Director could change the scheme u/s 42 of the Act after the repartition order had become final u/s 21, as, admittedly, the respondents had not filed an appeal u/s 21(4) against the order of the Settlement Officer made u/s 21(3) of the Act.

The result is that this petition succeeds and the impugned order is quashed. In the circumstances of this case, however, I will make no order as to costs.