Harminder Singh and Others vs The State of Punjab

V.K. Jhanji, J.—In this writ petition, the only question raised is as to whether the Government is competent to issue notification under sub section (1) of Section 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentations) Act, 1948 (hereinafter referred to as the Act) in an estate where consolidation had already taken place under the Act.

The writ-petitioners are the land-owners in village Khadial Tehsil Sunam District Sangrur. Notification u/s 14(1) of the Act was published on 21.9.1953 and confirmed on 6.12.1959. Subsequently, the Scheme was revoked and withdrawn on 15.10.1968. Thereafter, subsequent scheme was prepared and published according to the provisions of the Act which were confirmed on 21.1.1970 u/s 20 (1) of the Act According to the scheme, repartition was carried out u/s 21(1) of the Act on 11.7.1970 and on the same day possession of all the right-holders were transferred u/s 23 of the Act. After completion of the consolidation under the Act, the consolidation record was consigned on 3.2.1973.

Some of the right-holders of the village through representation dated 19.5.1988 requested the Director, Consolidation of Holdings, Punjab, Chandigarh, to carry out the consolidation proceedings. In the representation, it was stated that despite consolidation proceedings which took place in the village about 20 years back, no benefit accrued to the right-holders as almost land measuring about !00 Acres was left as Bachat. It was also stated that small Taks have been made because at the time of consolidation, there was Thur and Sam in the village. The area which was left as Bachat, should be allocated to the right holders in order to reduce the number of their holdings. The representation was considered by the Government and notification dated 23.9.1988 was published on 7.0.1988 (Annexure P.1/T) vide which the Government notified seven villages u/s 14(1) of the Act including the village Khadial for the purpose of better cultivation of land. This notification is being challenged by the petitioners in this writ petition.

Mr. Manjit Singh Khaira, Senior Advocate, learned counsel for the petitioners raised various contentions. He contended that sub-section (1) of Section 14 of the Act does not specifically confer on the Government, the power to consolidate the holdings in an estate where consolidation has already taken place under the Act and, therefore, the State Government is not competent to issue fresh notification for consolidation of holdings. He further contended that Section 36 of the Act provides for variation and ravocation of the Scheme for consolidation of holdings and in view of this provision, the Authorities should have acted u/s 36 of the Act instead of ordering fresh consolidation under the Act. Lastly, he submitted that the Scheme of the Act is to consolidate the holdings and to prevent future fragmentation and, therefore, the Government is bound to act under Chapter II of the Act instead of ordering reconsolidation of holdings.

In order to appreciate the contention advanced by counsel for the petitioners, it is necessary to notice various provisions of the Act u/s 14 of the Act, the State Government is competent to issue notification suo motu or on application made in this behalf by the land owners to declare its intention to make a Scheme for consolidation of holdings in any estate or group of estates or any part thereof. Sections 15 to 18 of the Act provide how Scheme is to be made in accordance with guidelines provided therein Section 19 provides that after the Scheme is ripe for publication, the Consolidation Officer shall publish it in the manner prescribed in the estate or estates concerned. Any person who feels aggrieved of any provision of the Scheme is entitled to submit to the Consolidation Officer his objections in writing against the Scheme. The Consolidation Officer thereupon has to consider the objections, if any, received by him and send it to the Settlement Officer after such amendments as he deems necessary together with his remarks on the objections received against the Scheme. The Scheme is then confirmed by the Settlement Officer with or without modification. If the Settlement Officer refuses to confirm the Scheme, he returns the draft Scheme to the Consolidation Officer for reconsideration and resubmission as provided u/s 20 of the Act. Then, u/s 21 of the Act, repartition proceedings take place and the party aggrieved is entitled to file written objections before the Consolidation Officer and a right of appeal is provided to the Settlement Officer. A further right of appeal to the State Government is also provided. Section 22 of the Act casts a duty on the Consolidation Officer to have new record of rights prepared giving effect to repartition carried out u/s 21 of the Act and orders in respect thereof made under the Act Section 23 of the Act deals with right to possession of new holdings of right-holders u/s 21 (1) of the Act, Section 23. A of the Act deals with the management and control of land reserved for common purposes u/s 18 of the Act. Section 24 refers to the time when the scheme comes into force and that is after the persons entitled to possession of holdings allotted to them under the scheme have entered into such possession. It also deals as to when their possession can be disturbed. Possession has to remain undisturbed (i) until a fresh scheme is brought into force ; or (ii) a change is ordered in pursuance of provisions of sub-sections (2), (3) and (4) of Section 21, or (iii) an order is passed under Sections 36 or 42 of this Act. Thus, the round which started with the notification of the Government''s intention u/s 14 of the Act is completed and the purpose of the Act is fully given effect to. After completion the consolidation proceedings, a new right-holder is at liberty to use the land he likes and can make improvements according to his own requirements. The question that calls for examination is as to whether it is open to the Government to exercise its powers de novo by declaring its intention to make a scheme as contemplated by Section 14 of the Act. It is true that sub-section (1) of Section 14 of the Act does not specifically provide for fresh consolidation of holdings in an estate where it may have already taken place under the Act. However, Section 24 of the Act gives an indication that the possession of the right-holders cannot be disturbed ''till fresh scheme is brought into force or charge is ordered in pursuance of provisions of subsections (2), (3) and (4) of Section 21 of the Act or an order is passed u/s 36 or 42 of the Act. The change as contemplated by sub-section (2), (3) or (4) of Section 21 of the Act is only when a person is aggrieved by repartition carried out under subsection (1) of Section 21 of the Act. Under sub-section (2) of Section 21 of the Act, any person aggrieved by the repartition is entitled to file written objections within fifteen days of the publication of the scheme made under sub-section (1) of Section 14 of the Act before the Consolidation Officer. The Consolidation Officer is then duty bound to decide the objections of the persons who are likely to be affected by his order, and after hearing, has to pass such orders as he considers appropriate confirming or re modifying the repartition. Against his order, an appeal is provided to the Settlement Officer under sub-section (3) of Section 21 of the Act. A further appeal is provided under sub-section (4) of Section 21 of the Act, to the Assistant Director of Consolidation against the order of the Settlement Officer. In the eventuality of any order passed under sub-sections (2), (3) and (4) of Section 21 of the Act confirming or modifying the repartition, change can be ordered and possession can be disturbed. Section 36 of the Act provides that a scheme confirmed under the Act can be varied or revoked by the same authority which confirms it subject to the orders of the State Government. When a scheme is varied or revoked u/s 36 of the Act, a subsequent scheme is bound to be prepared and confirmed in accordance with the provisions of the Act. Section 36 also says that power and jurisdiction conferred by it on the Settlement Officer may be used and exercised at any time. The expression ''at any time'' was considered by a Full Bench of this Court in the case of Bhikan and Ors. v. Punjab State (1963) 65 P.L.R. 368 wherein it was held that the phrase "at any lime" in Section 36 of the Act means "at any time after preparation of the draft scheme but before repartition which takes place after all objections, appeals etc., are disposed of. The power u/s 36 cannot be exercised after the new record of rights comes into force." Thus, the power of the Settlement Officer comes to an end on the repartition which has to be carried out by the Consolidation Officer and after the exercise of appellate powers by the Settlement Officer, from the order of the Consolidation Officer in matters of consolidation, there is no further duty which the Settlement Officer is called upon to perform. He, therefore becomes functus officio. In this view of the matter, the Settlement Officer cannot disturb the repartition u/s 36 of the Act as that can be done by the State Government alone. Thus, power u/s 36 of the Act can be exercised before the repartition and not later. Section 42 of the Act enables the Government to satisfy itself as to the legality or propriety of "any order passed, scheme prepared or confirmed or repartition made by any Officer under this Act." Sections 36 and 42 of the Act obviously relate to different matters-Had that not been so and if all the powers which could be exercised u/s 36, can be exercised u/s 42 of the Act, then there would have been no necessity of enacting Section 36. Section 36 of the Act speaks of varying or revoking a confirmed scheme as varying or revoking is different from examining the legality or propriety of any order passed by an Officer under the Act and varying or reversing such an order.

From the above, it can safely be gathered that out of three situations given in Section 24 of the Act where possession can be disturbed, two relate to during the pendency of the consolidation proceedings and not after the same has come to an end or has become final. The third situation where the possession can be disturbed is only when a fresh scheme is brought into force and that can only be consequent upon notification under sub-section (1) of Section 14 of the Act when Government decides to declare its intention to make a scheme for consolidation of holdings. This is to cover the situation where Government finds that in consequence of transfer or succession etc. the area consolidated has become disintegrated into small fragments and it becomes necessary to consolidate the holdings. The Government can start consolidation of holdings de novo by declaring its intention to make a scheme as contemplated by Section 14 and then the entire process and procedure is allowed to be completed as provided under the Act so as to achieve the object.

The judgment relied upon by the learned counsel for the petitioners i. e. Ghisa Ram v. State of Punjab (1970) 72 P.L.R. 458 is not relevant at all. In Ghisa Ram''s case (supra), notification was issued under the Act in the year 1950 and immediately thereupon consolidation of holdings took place. In the year 1964, another notification was issued to consolidate the village but in the second notification, there was no indication that there was any fragment after the first notification and that to consolidate the holdings the second notification had been issued. In such circumstances, notification was held to be bad. However, in the present case, this is not the position because reading of the impugned notification shows that the same was issued for better cultivation.

So far as the last contention of learned counsel for the petitioners is concerned, we find that Chapter II of the Act has not been brought into operation. For this, see judgment in State of Punjab v. Sohan (1976) 78 P.L.R. 303. The question as to whether it is mandatory on the part of the Government for bringing in force Chapter II of the Act was considered by another Division Bench judgment of this Court in Jagir Singh v. State of Punjab (1963) 65 P.L.R. 754 wherein it was held that it is not essential that Chapter II of the Act be brought into operation in any particular area before ordering consolidation under Chapter III It was also pointed out therein that the State Government may be faced with a number of administrative difficulties before it can bring into force Chapter II of the Act and it is neither possible for the Courts to envisage the difficulty nor desirable for them to question administrative discretion of the State Government. We are also of the view that in order to avoid future fragmentation after the consolidation of holdings has taken place under the Act, it is desirable for the Government to bring into force Chapter II of the Act but again we can only observe that it is the administrative function of the Government over which the Courts have no control.

Learned counsel for the petitioners also contended that the action of the Government in ordering reconsolidation is arbitrary as the reconsolidation has been ordered on whimsical grounds. From the written statement filed on behalf of the official respondents, we find that the consolidation in the village took place nearly 20 years back and the right-holders of the village, in their representation, have given cogent reasons for the necessity of fresh consolidation. This representation was taken into consideration by the Government and the Government, after having satisfied itself, decided to issue fresh notification for fresh consolidation of holdings. The notification, to our mind, is not arbitrary and has not come into existence on account of extraneous considerations as canvassed by the learned counsel for the petitioners.

For the reasons recorded above, we find no merit in this writ petition which is hereby dismissed with no order as to costs.