Suram Singh vs State of Himachal Pradesh etc.

R.S. Pathak, C.J.—In this and the connected writ petition the Petitioners challenge the validity of proceedings taken for their dispossession from land which has been the subject of consolidation proceedings.

The Petitioners are land-owners in village Saliali, Tehsil Nurpur, District Kangra. Consolidation proceedings were commenced in the village under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. They proceeded to the point where repartition was effected. When the occasion arose for the owners and the tenants to enter into possession, according to the Petitioners the tenants declined to enter into possession of the land allotted to them because of their economic incapacity to cultivate the land. The Petitioners say that as owners they have been in continuous cultivatory possession of the land ever since.

In November 1974 the tenants, who have been impleaded as Respondents, applied to the Consolidation Officer for delivery of possession of the land. The Consolidation Officer has issued notice to the Petitioners alleging that they had taken possession illegally of the land and that they should vacate possession, or alternatively file an objection. It appears that since the issue of notice the Consolidation Officer has also issued a warrant of possession.

The Petitioners contend that the proceedings initiated by the Consolidation Officer and the issue of the warrant of possession are without jurisdiction and they are entitled to relief under Article 226 of the Constitution.

The returns to the writ petition filed by the Respondents allege that the consolidation authorities were in collusion with the Petitioners and at the time possession had to be delivered to the tenants actual possession was not delivered to the latter and the consolidation papers were consigned to the record room without that statutory duty having been discharged. It is denied that the tenants did not propose to enter into possession of their tenancies. It is averred that they have been agitating against the failure of the consolidation authorities to deliver possession to them, and in November 1974 they applied to the Consolidation Officer for delivery of possession.

Learned Counsel for the Petitioners contends that the Consolidation Officer has no jurisdiction to take the impugned proceedings because the consolidation proceedings had come to an end and the Consolidation Officer had become functus officio. Learned Counsel says that the tenants could have applied u/s 50 of the Punjab Tenancy Act or u/s 43 of the Himachal Pradesh Tenancy and Land Reforms Act for delivery of possession on the ground that they had been dispossessed by the Petitioners, but as they allowed the period of limitation for taking such proceedings to lapse the Petitioners could not be dispossessed. In my opinion, the contention has no force. Section 23(2) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act provides that if all the owners and tenants affected by the repartition do not agree to enter into possession they shall be entitled to possession of the holdings and tenancies allotted to them from such date as may be determined by the Consolidation Officer, and published in the prescribed manner in the estate or estates concerned, and the Consolidation Officer shall, if necessary, put them in physical possession of the holdings to which they are so entitled, and for doing so he may exercise the powers of a Revenue Officer under the Punjab Land Revenue Act, 1887. Section 24(1) provides that as soon as the persons entitled to possession of holdings under the Act have entered into possession of the holdings respectively allotted to them the scheme shall be deemed to have come into force. Admittedly, the tenants were not given possession of the land allotted to them. It seems from the material on the record that that was not because of any default on the part of the tenants. It also appears that the Petitioners entered into possession of the land although they had no right to do so. That being so, it cannot be said that the requirement of Section 23(2) binding the Consolidation Officer to deliver possession to the tenants was complied with. In the circumstances, the provisions of Section 24(1) are not satisfied. The persons entitled to possession have not yet entered into possession, and it cannot be said then that the scheme has come into force. The Consolidation Officer was bound to deliver possession to the tenants, and that was a duty to be discharged by him under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act. It is not disputed that the East Punjab Act continues to operate inasmuch as the area originally formed part of the erstwhile State of Punjab and has been governed all along by the East Punjab Act. The tenants are entitled to invoke the jurisdiction of the Consolidation Officer, and the Consolidation Officer has power u/s 23(2) of the East Punjab Act to take all such proceedings necessary for delivery of possession. I am supported in this view by Hartej Bahadur Singh v. The State of Punjab 1964 P.L.R. 751, The provisions of Section 50 of the Punjab Tenancy Act and Section 43 of the Himachal Pradesh Tenancy and Land Reforms Act do not come into operation at all. They cannot be applied to cases where a tenant has not been given possession as required by Section 23(2) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act. The latter is a special enactment and cases expressly covered under it are governed, in the matter of delivery of possession, by Section 23 of the Act. Consequently, the period of limitation specified in Section 50 of the Punjab Tenancy Act and Section 43 of the Himachal Pradesh Tenancy and Land Reforms Act cannot be invoked by the Petitioners.

It is also urged by the Petitioners that the period of limitation mentioned in Section 122 of the Punjab Land Revenue Act governs the present cases and an application must be made to the Revenue Officer within three years from the date recorded in the instrument of partition by the tenant for delivery of possession. The applications having been made in November 1974, it is said, are barred by time. It seems to me that while Section 23(2) of the East Punjab (Consolidation and Prevention of Fragmentation) Act empowers the Consolidation Officer to exercise the powers of a Revenue Officer for delivery of possession the limitation on the exercise of those powers of three years imposed by Section 122 cannot be attached to the exercise of the powers of the Consolidation Officer. u/s 23(2), he is bound to deliver possession to the tenants, and no application is required by the tenants in order to obtain possession. The provisions of Section 122 of the Punjab Land Revenue Act restricting the invoking of the powers of a Revenue Officer by the imposition of a period of limitation cannot be read into Section 23(2) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act. The same view was taken by the Punjab High Court in Kartar Singh v. Lal Singh 1972 C L.J. 637.

Learned Counsel for the Petitioners further contends that the tenants had a remedy u/s 21 and Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act. A plain reading of those provisions indicates that the contention is without force. Section 21 deals with repartition, and the remedies therein are provided against the repartition effected by the Consolidation Officer. Clearly, the tenants have no grievance against the repartition proceeding; indeed, on the contrary, they take their stand on the repartition and claim possession of the land allotted to them consequent upon the repartition. As regards Section 42, it does not apply because what is revisable by the State Government thereunder is an order passed, a scheme prepared or confirmed or repartition made under the Act. The relief sought by the tenants by the application made in November 1974 to the Consolidation Officer is not directed against any of these. The Consolidation Officer had omitted to deliver possession, and it was for him to fulfil the statutory duty cast on him in that behalf.

I am also not satisfied that a civil suit lay in the matte R.S. 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act bars such a suit.

Finally, learned Counsel for the Petitioners contends that the officer, Shri A.N. Jain, who has issued the impugned notices, does not enjoy the powers of a Consolidation Officer and that it is Shri Ram Rattan who as Consolidation Officer enjoyed jurisdiction on that date. This allegation has been made in the rejoinder affidavit. It was never made by the Petitioners in the writ petition itself. The allegation should have been clearly set out in the writ petition, so that an opportunity would have been available to the Respondents to meet it. The question involves an investigation into facts, and it was necessary that the Respondents should be afforded an opportunity of replying to the allegation. Reliance has been placed by learned Counsel for the Petitioners on Sri-La-Sri Subramania Desika Gnanasambanda Pandarasannadhi Vs. State of Madras and Another, , but in my opinion the observations of the Supreme Court in that case are distinguishable. In that case, the Respondents had full notice of the fact that one of the grounds on which the validity of the impugned order was challenged was that he had not been given a chance to show cause why the impugned notice should not be issued. In the present case there is nothing to show that the Respondents had all along notice of the point now sought to be taken by the Petitioners. They had notice only when the point was set out in the rejoinder affidavit. In any event, even if the point was allowed to be raised, beyond making the barest allegation the Petitioners have placed no material with their rejoinder affidavit for the purpose of substantiating it. The contention cannot prevail.

Accordingly, the writ petitions fail and are dismissed with costs.

One thing more. On January 8, 1976, this Court disposed of an application by the Petitioners for an order restraining the Respondents from dispossessing the Petitioners during the pendency of the writ petitions. By the terms of that order the Petitioners were permitted to continue in possession provided they furnished within a month security in the sum specified in the order to the satisfaction of the Consolidation Officer. It was mentioned in the order that the disposal of the amount would be determined by the Court at the time of deciding the writ petitions. That occasion has now been reached. Ordinarily, but for the aforesaid stay order made by this Court the warrant of possession directed against the Petitioners would have been executed and possession would have been transferred from the Petitioners to the tenants Respondents. The Petitioners were, however, enabled to stay on in possession, and for the purpose of compensating the said tenants-Respondents for the deprivation of their present right to possession during the pendency of the writ petitions, the Petitioners were required to furnish security from which the amount for which security was furnished could be realised and paid over to the tenants-Respondents. The writ petition having been dismissed, it is apparent that a case has arisen for making available to the tenants-Respondents the benefit of which they were deprived. The sums mentioned in the stay orders were fixed at the time of making the orders, keeping in mind the value of the benefit of which the tenants-Respondents stood deprived. It is in the interests of justice that those amounts should be paid over to the tenants-Respondents. An opportunity will be given to the Petitioners to pay over the amounts in cash, but on their failure to do so the said amounts will be realised from the respective securities. I order accordingly. It is pointed out by learned Counsel for the Petitioners that the security has not been furnished by the Petitioners. If that is so, it must be taken that the Petitioners have continued in possession but not by virtue of the stay orders. In that event, no question arises of any amount being paid by the Petitioners to the tenants-Respondents.