Surjan Singh and Others vs Financial Commissioner and Others

S. Ravindra Bhat, J.—In these writ petitions, under Article 226 of the Constitution of India, the petitioners question orders made by the

Financial Commissioner in consolidation proceedings, in terms of the East Punjab Holdings (Consolidation and Prevention of Fragmentation ) Act,

1948, as extended to Delhi (called ""the Act"") in Village Mundka, Delhi started in 1975. A scheme of consolidation was drawn up inviting

applications for residential plots in the extended Lal Dora within thirty days from 1.4.76. The scheme was published and was confirmed by the

Settlement Officer (Consolidation) on 26.7.1976. In terms of the confirmed scheme, repartition of residential plots within the extended Lal Dora as

well as agricultural lands were effected, by authorities under the Act.

A resolution was passed by the village panchayat on 29.4.1979 suggesting variations in the scheme and on 8.5.1979 the Settlement Officer

issued an order, holding inter alias that:

(1) Claims in applications allowed by the predecessors would be included in the Scheme.

(2) In addition to the applicants indicated in Annexure II (to the Scheme) there were some other applications submitted by the Haqdars in April,

1976 but were not included in the Scheme; they could also be included in the Scheme.

As demands of right-holders had to be met with, amendments to the scheme of consolidation were proposed. The draft amended scheme was

published on 06.08.80. This was subsequently dropped by the Settlement officer (Consolidation) on 22.05.82 on the ground that there was no

area for allotment and that a few right holders had opposed the allotment. This order was set aside by the Financial Commissioner, when

challenged before him. Again, after remand, the Settlement Officer (Consolidation) did not comply with the order of the Financial Commissioner.

Some Villagers, and right holders, feeling aggrieved by the order approached the Financial Commissioner. The revision petitions, in the second

round, however, were rejected, on the view that once the scheme was confirmed, there was no scope for its amendment.

A batch of writ petitions were filed; they were heard by a Single Judge of this Court, who disposed them by order dated 23.11.1984. The court

found that the claim of the three writ petitioners before it, had to be considered; the authorities were directed to proceed with the proposal to

amend the Scheme in accordance with the observations made in the judgment.

In order to comply with the directions, of this Court, the proposal for amendment of the scheme was again revived. Consequently, the earlier

amended scheme was allowed and confirmed by the Settlement Officer (Consolidation) on 4.3.1985 with the remark that there was no necessity

for undertaking the circuitous procedure in view of the order of the High Court. Allotment of residential plots was made out of the land included

through the amendment within the extended Lal Dora.

Apparently some more eligible right-holders were left out. They claimed to be entitled to plots according to orders of this Court. A need was felt

to earmark land for allotment to persons, whose cases were still pending before this Court and some more area for providing the passages to

various plots had to be allotted. In view of these circumstances, the proposal for further amendment of the scheme of consolidation to include an

area of 92 bighas 7 bids was within the extended Lal Dora was drawn up by the Consolidation Officer on 20.05.1988. The Settlement Officer

(Consolidation) accepted the proposal on 15.06.88. Pursuant to this amendment of the scheme, allotments of plots were made to the concerned

right holders according to the demand approved earlier.

The confirmation of the scheme, was challenged through two revision petitions u/s 42 of the Act being case No. 215/89 - Shri Surjan Singh and

Ors. v. S.O (C) and Anr. and case No. 216/89- Shri Hari Singh and Anr. v. S.O. (C) and Anr., before the Financial Commissioner. In the two

revision petitions, the Settlement Officer (Consolidation) and the Consolidation Officer were imp leaded as respondents. Other parties, likely to be

affected by the outcome of the decisions, were not imp leaded. The order dated 19.09.89 allotting plots, which had been passed prior to the filing

of the two revision petitions was, however, not assailed. The revision petitions were decided by the Financial Commissioner by order dated

31.10.1989 without issuing notice to the concerned or affected respondents. The amended scheme was set aside, and the matter was remanded to

the the Settlement Officer (Consolidation) for carrying out amendments afresh by following the rules and consideration the observations made in

the said order.

The order dated 30.10.1989 of the Financial Commissioner was questioned in five writ petitions before this Court by persons to whom plots

had been allotted out of the land included within the extended Lal Dora through the amended scheme. A learned judge of this Court, by his order

dated dated 24.3.1992 quashed the Financial commissioner''s order dated 31.10.89 and remitted the case with a direction that the matter shall be

decided after giving notices to the interested parties, and after granting opportunity of being heard.

After receipt on remand, the matter was registered as Case No. 58/92. The Financial Commissioner issued notices to the parties i.e. the

petitioners in the earlier two revision petitions (decided by the Financial Commissioner on 31.10.89) as well as those who who filed the five writ

petitions. In response to the notices Shri S.S. Vats, Advocate appeared on behalf of the petitioners in the revision petition No. 215/89 viz., Shri

Surjan Singh, Shri Raghbir Singh, and Smt. Veena Goel. Shri Raj Kumar represented the Petitioners in the other revision petition No. 216/89 viz.

Shri Hari Singh and Shri Ran Singh. None appeared on behalf of the persons who had approached the High Court by filing the writ petitions. It

was suggested by Shri Vats and Shri Mahipal Singh that since the matter had to be decided by the Financial Commissioner, after issuing notices to

the interested parties and after giving them opportunity of being heard, in view of this Court''s order, notices to all the interested persons likely to

be affected by the amendment and the allotment of plots ought to be given.

The Financial Commissioner issued notices to all the khatedars likely to be affected; subsequently, the khatedars who had approached this

Court, appeared through counsel and a large number of the right-holders, whose names were recorded in the list were represented in the

proceedings. The Financial Commissioner decided, after hearing the parties and counsel that a public notice, through press/ newspaper

advertisement, as well as proclamation in the village, should be also given to all the right-holders to make representations, to avoid further

complaints of lack of opportunity. Therefore, notices were published in an issue of Nav Bharat Times (Hindi) and proclamation by beating of drum

in the village was also done.

Pursuant to the publications, a number of right holders represented and participated in the proceedings; six other counsel appeared in the

matter. During the course of hearing, counsel for petitioner moved an application for amendment of the revision petition. That was disposed by an

order of 1.9.1992. The case was fixed for final arguments. The Financial Commissioner had agreed to suggestion by the parties that the matter be

decided finally, as he had powers u/s 42 of the Act to amend the scheme. The entire matter was heard on all counts with a view to finally determine

the validity or otherwise of the scheme of amendment confirmed by the settlement Officer (Consolidation) on 15.06.1988.

The Financial Commissioner, by the impugned order, dealt with the objection raised at that stage that he should not, in exercise of the power

u/s 42, amend or confirm the scheme; he only ought to consider the legality of the order of the lower authorities. By the impugned order, that

objection was overruled. He also considered the merits of the amendment to the scheme, and held against the petitioners. The relevant part of the

impugned order reads as follows:

I have given my consideration to the submissions made on behalf of both sides on this crucial point. From a plain reading of Section 36 of the

Act it is apparent that in the matter of variation of revocation of a scheme of consolidation the subsequent scheme has to be prepared published

and confirmed in accordance with the provisions of the Act. In other words, the procedure prescribed for preparation, publication and

confirmation of the original scheme has to be equally followed for the subsequent scheme also. It is true that the High Court has ordered for

allotment of plots to some right-holders who had approached there by extending the phirni. This cannot be taken to imply that the High Court had

itself ordered for the amendment of the scheme for inclusion of the area at a particular site. All that was ordered to be done was to allot plots to

such persons whose demands were approved, and that could only be done by extending the phirni since no area was reported to be available

within the extended Lal Dora earmarked for that purpose in the original scheme. I, Therefore, hold that the procedure laid down u/s 36 had to be

followed. Since it is so held, the remarks recorded by the Settlement Officer (Consolidation) in his confirmation order that the amendment being in

continuation of the earlier one, the circuitous procedure could be dispensed with do not hold water. In order to examine the import of the

contention of Shri Saroha that the Lt. Governor has already declined to interfere with the order of confirmation of the amended scheme and as

such the Court has no authority to reopen the issue. I have gone through the papers filed by Shri Saroha. It is gathered that the report called for by

the Lt. Governor it was reported that administratively it seemed to be difficult to intervene at that stage. The aggrieved persons would have to seek

remedy though a court of law. The report was submitted to the Lt. Governor who has appended his signatures approving the report. It is thus clear

that the Lt. Governor had not considered the merits or demerits of the amended scheme. As against this, he had approved the proposal that the

intervention on the administrative side was not possible and the aggrieved persons could seek their remedy through a court of law. It is thus wrong

to argue that the Lt. Governor had upheld the order of confirmation. As decided it was incumbent upon the Settlement Officer ( Consolidation ) to

follow the procedure and invite objections from the affected persons. That having not been done admittedly, the order of confirmation of the

amendment scheme cannot be sustained. I hold accordingly.

Since the suggestion of the learned Counsel representing the parties that this Court may take steps to finally settle the question of amendment of

the scheme and extension of the Lal Dora to accommodate the demands of the right-holders concerned was approved and accepted, public

notices through press as well as proclamation in the village were issued to enable the affected persons to prefer objections against the proposed

amendment of the scheme. In response to the notices, many right-holders had appeared on one or two dates but none filed the written objection.

Shri Vats, Shri Mahipal Singh and Shri N.S. Dass, Advocates have come forward to challenge the proposed amendment of the revision petition

which was disposed of by my order dated 01.09.92 disallowing the proposed amendment. The proposed amendment pertained to addition of a

new ground that pursuant to the amendment of the consolidation Rules which provides (i) that no Hqadar can be given a plot with in the extended

Lal Dora measuring more than 2 bighas 10 bids was (ii) residential plot can be given to only a person who has been person whose land is included

in the extended Lal Dora will be given three times the land so covered in Lal Dora and the person getting the Lal Dora plot will have to surrender

three times the extent of the plot being allotted to him, the amended Rule on the subject be applied in the matter of the amendment of the scheme.

Though the application was rejected but it was left open that since the amendment was related to the applicability of the amended rules, the plea of

the applicability of the change of law can always be taken at the time of discussion of the matter on merits. In view of the above, Shri Vats has

sought to reassert his plea that the amended rule be applied for purposes of determining the issued vis-a-vis the amendment of the scheme. I am

not inclined to accept the submission of Shri Vats on this count. The amendment pertains to the original scheme and has to be deemed as its

integral part in continuity of the original scheme. The change of law can be applied to the new scheme only. The amendment in the rules has taken

place such after the publication of the amendment scheme and, Therefore, the question of the applicability of the amended rules to the amendment

of the scheme does not arise. This ground take by Shri Vats thus fails.

The next vital ground against the proposed amendment taken on behalf of the challengers to the said amendment has been that the built up area

of the right holders whose land is proposed to be taken within the extended Lal Dora cannot be taken away from them. The arguments have been

made that the proposal and the said built area be left out and/or the same be reserved as such, the amended scheme being a new one. This

argument has been strongly contested on behalf of the opposite side stressing that the land proposed to be included in the extended Lal Dora to

accommodate the demands of the right holders in view of the High Court order and other circumstances has been allotted to the person concerned

during repartition u/s 21(1) of the Act and it is an agricultural land for all practical purposes, The said land can be used only for agriculture and any

construction thereon, is thus unlawful and cannot be given any recognition in law. Further that it is incorrect to argue that the amended scheme is a

new observations, as permitted at the time of original scheme, cannot be enlarged now to the amended scheme.

I find considerable force in the arguments of the learned Counsel representing the opposite parties. Use of land allotted during repartition u/s

21(1) of the Act for purposes other than agriculture is strictly prohibited by law. That being so, the construction, if any, done by the right- holders

on such land does not have the sanction of law and cannot be given any recognition. The plea that the amended scheme is a new one has already

been turned down by me while deciding the issue of applicability of the amended consolidation Rules in the foregoing paragraphs.

Lastly, the learned Counsels representing the revisionists and others Shri Dalal submitted that persons not covered by the High Court cases

should not be included in the amendment. It was stressed that only those persons whose demands have been approved have a right to be included

in the amendment. It was specifically pointed out that Krishan Kumar was not at all entitled to any plot and his name has been included in the

amendment. It was explained that neither Krishan Kumar had any recorded demand nor he had approached the High Court. That being so, his

name cannot be included and the proposed amendment in that behalf was unjustified.

In reply, Shri C.S. Saroha, Advocate representing Shri Krishan Kumar frankly admitted that there was no demand of Shri Krishan Kumar. He

however, sought to plead that there are extenuating circumstances for accepting his demand and that this Court has the jurisdiction to entertain his

demand u/s 43A of the Act treating it as a clerical error or omission. Shri Saroha did not contest the plea on facts.

There is no merit in the submission of Shri Saroha. The amendment is being restored to pursuant to the orders of the High Court. Undisputedly,

Shri Krishan Kumar had not preferred any demand for the plot. Nor had be approached the High Court. That being so, it is not practically

possible to entertain his demand for the first time at this stage it may open new fronts for other similarly placed right-holders. I Therefore, disallow

the request of Shri Saroha. Resultantly, it is held that the demand of Shri Krishan Kumar cannot be included in the amended scheme.

On the basis of what has been discussed above, I hereby accept the proposed amendment and approve the same sanctioning the amendment

scheme in exercise of my powers u/s 42 of the Act with the stipulation that the demand of Shri Krishan Kumar shall not be included in he amended

scheme. The matter stands disposed of accordingly.

Learned Counsel for the petitioners in WP 348/93, submitted that the impugned order is in error, in not seeing that once the original scheme,

was not followed up, or approved, the subsequent scheme had to be prepared, published and confirmed in accordance with the provisions of the

Act. This was the logical consequence of operation of provisions of Sections 19 and 20, which had to be mandatorily followed. The Financial

Commissioner could not have proceeded to finalize the scheme. The procedure prescribed entailed inviting objections from all interested; that was

admittedly not done. The affected persons whose lands were included within the extended Lal Dora, were Therefore, deprived the opportunity. It

was contended that violation of the provisions of Section 19 and 20 rendered the confirmation order illegal and improper.

Counsel relied upon the scheme of the Act and the rules to submit that the authorities were bound to follow them. It was contended that

Section 14 enables the Government either suo motu, or on application made, declare its intention by notification to make a scheme for

consolidation of holdings in an estate"" or estates or any part as may be specified. The Consolidation Officer"" has to obtain the advice of the

landowners, of the non-proprietors and of the Gram Panchayat; he thereafter is required to prepare a scheme for the consolidation of holdings. u/s

19, the Consolidation Officer"" has to publish the draft scheme (of consolidation) and within 30 days thereafter, any person likely to be affected by

it can communicate in writing to the Consolidation Officer, any objection relating to it. He then has to consider objections, and submit the scheme

with such amendments (as he may consider to be necessary) together with his remarks on the objection to the Settlement Officer (Consolidation).

The scheme, as amended, is then published. Section 20 provides that if no objections are received to the draft scheme, the Settlement Officer

(Consolidation) shall confirm the scheme. If objections are received, then the Settlement Officer (Consolidation) may either confirm the scheme,

with or without modifications, or refuse to confirm it. If the scheme is confirmed it should be published. Section 21 relates to repartition to be

carried out by the Consolidation Officer in accordance with the scheme as confirmed u/s 20 and the boundaries of the holdings as demarcated are

required to be shown on the Shajra which is published. Those aggrieved by such repartition can file written objections before the Consolidation

Officer who after hearing the appellant has to pass such order as he considers"" proper. An appeal is provided from the order of the Consolidation

Officer to the Settlement Officer (Consolidation). A person aggrieved by the order of the Settlement Officer (Consolidation) may appeal to the

State Government. Section 22 provides for the preparation of a new record-of-rights by the Consolidation"" Officer. Section 23 deals with the

rights to possession of new holdings. Section 36 provides for the power to vary or revoke the scheme. It was contended that this scheme cannot

be short circuited or ignored, more so by the Financial Commissioner, whose actions are to conform to the strict bounds of procedure and the

various steps indicated in the Act and the rules.

It was urged, on the merits, that the impugned order is also not sustainable because it declined the amendment proposed by the petitioner. The

amendments were in the light of the Amendments carried out to the Rules framed under the Act, that no Hqadar could be given a plot with in the

extended Lal Dora measuring more than 2 bighas 10 bids was and that residential plots could be given only to persons whose land was included in

the extended Lal Dora who would be entitled to three times the land so covered (in Lal Dora) provided that such persons getting the plot surrender

three times the extent of the plot being allotted. It was contended that the scheme, even if amended, could not ignore the existing law, as on the

date of the impugned order. Learned Counsel relied upon the decision of the Supreme Court reported as Mithilesh Kumar and Another Vs. Prem

Behari Khare, , in this regard.

The respondents urged that the demands of those for whom the scheme was amended had been approved by this Court. The orders of court

directed that allotments should be made by extending the phirni. In such a case, there was no necessity to take recourse to the lengthy formality of

publication of the scheme and inviting objections. It was submitted that the Settlement officer (Consolidation) in his order dated 15.06.88, had held

that the amendment was in continuity of the earlier scheme, and there was no necessity for undertaking a time consuming procedure for amending

the scheme.

Learned Counsel urged that the petitioners cannot even maintain the present proceedings, since they not only did not object to the procedure

adopted by the Financial Commissioner, but even suggested it. It was submitted that the Financial Commissioner acted within his power to

sanction the amendments, to the scheme, after giving appropriate and proper hearing not only to the parties before him, but all those who were

likely to be affected.

Counsel for the respondents also contended that the amendments were necessitated due to various orders of the court, which had attained

finality. Those writs were binding, and no grievance was voiced against them or the solution suggested in the directions, by the present petitioners.

It was contended that the petitioner did not have any manner of interest; he did not disclose as to how or in what manner he would have been

affected due to the formalization of the scheme, by the impugned order.

It was contended that the power u/s 42 of the Act is of widest magnitude. So long as the Financial Commissioner followed the principles of

natural justice, his order- as in this case, amending the scheme could not be found fault with.

In view of the above facts and contentions, the question which arises for determination is whether the procedure adopted by the Financial

Commissioner in publishing notices inviting objections deciding the issue of amendment to the scheme, is lawful. The second question is whether the

impugned amendments are illegal or are required to be set aside.

The scheme was originally framed in 1976. The panchayat wanted some amendments to be incorporated in 1979; this was not done. The

matter reached the Financial Commissioner twice; despite efforts the scheme remained unamended. Aggrieved parties approached this Court. By

order dated 23.11.1984 this Court found that the claim of the three writ petitioners before it, had to be considered. The authorities were directed

to proceed with the proposal to amend the Scheme in accordance with the observations made in the judgment. The earlier scheme was allowed

and confirmed on 4-3-1985. Some right holders were however, left out. Some of them approached courts. The authorities decided to earmark

land for allotment to those, whose cases were still pending before this Court and some more area for providing the passages to various plots

needed to be allotted. A proposal for further amendment of the scheme of consolidation to include an area of 92 bighas 7 bids was within the

extended Lal Dora was drawn up by the Consolidation Officer on 20.05.1988. The Financial Commissioner''s later order interfering with the

amendment was set aside by this Court, as he did not issue notice to any party likely to be affected. Upon remand, the impugned order was issued.

By this, the Financial Commissioner amended the scheme, after issuing notice and considering objections of all parties.

It has been held Roop Chand Vs. State of Punjab, ; State of Punjab Vs. Suraj Parkash Kapur etc., ; Swaran Singh and others Vs. State of

Punjab and others, that the object of the Act is consolidation of holdings and prevention of fragmentation, to improve agriculture operations. This

Court had, after considering those decisions, summarized the various stages of consolidation, in the judgment reported as Rajinder Singh and

Others Vs. Financial Commissioner and Others, as follows:

The Act was passed to provide for the consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings in the

State of Punjab. It was extended to Delhi. Chapter III of the Act deals with Consolidation of Holdings and it is provided by Section 14 that the

Government may either suo motu, or on application made, declare its intention by notification to make a scheme for consolidation of holdings in an

estate or estates or any part as may be specified. The Consolidation Officer has to obtain the advice of the landowners, of the non-proprietors and

of the Gram Panchayat; he thereafter is required to prepare a scheme for the consolidation of holdings. u/s 19, the Consolidation Officer shall

cause to be published the draft scheme of consolidation and within 30 days of such publication any person likely to be affected by such scheme

may communicate in writing to the Consolidation Officer, any objection relating to it. He then has to consider objections, if any, and submit the

scheme with such amendments as he may consider to be necessary together with his remarks on the objection to the Settlement Officer

(Consolidation). The scheme, as amended, is then published. Section 20 provides that if no objections are received to the draft scheme, the

Settlement Officer (Consolidation) shall confirm the scheme. If objections are received, then the Settlement Officer (Consolidation) may either

confirm the scheme, with or without modifications, or refuse to confirm it. If the scheme is confirmed it should be published. Section 21 relates to

repartition to be carried out by the Consolidation Officer in accordance with the scheme as confirmed u/s 20 and the boundaries of the holdings as

demarcated are required to be shown on the Shajra which is published. Those aggrieved by such repartition can file written objections before the

Consolidation Officer who after hearing the appellant has to pass such order as he considers proper. An appeal is provided from the order of the

Consolidation Officer to the Settlement Officer (Consolidation). A person aggrieved by the order of the Settlement Officer (Consolidation) may

appeal to the State Government. Section 22 provides for the preparation of a new record-of-rights by the Consolidation Officer. Section 23 deals

with the rights to possession of new holdings. Section 36 provides for the power to vary or revoke the scheme.

After preparation of and publication of the draft scheme, the issue is whether the Consolidation Officer is, in the absence of any objection,

bound to confirm the scheme. Here, it is immediately apparent that the consolidation proceedings are for the benefit, and efficient utilization of

agricultural lands; they are meant to avoid fragmentation, and consequent uneconomic holdings. Undoubtedly, the various stages where the scheme

is published, objections are invited and considered, and the scheme is finalized and confirmed, do indicate orderly, distinct and stage-wise

management of the process. Yet, at the same time, there is, in my opinion, sufficient operational flexibility inherent in the exercise. Thus even during

repartition proceedings, when the allocations are completed, after confirmation of the scheme, which would contain the broad outlines, the

authorities are empowered to pass orders in relation to individual claims. Hence having regard to the purpose of the enactment, the Consolidation

Officer is under a duty to apply his mind, while confirming the scheme.

The power of the Financial Commissioner, to call for records of a case, and make appropriate orders, is contained in Section 42. That

provision reads as follows:

Power of Chief Commissioner to call for proceedings. ""The Chief Commissioner may at any time for the purpose of satisfying itself as to the

legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the

record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit:

Provided that no order or scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to

be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration.

In Johrimal Vs. Director of Consolidation of Holdings, Punjab, , the argument raised was identical to the plea raised by the petitioners in this case.

It was contended that if any variation of a confirmed scheme was contemplated, recourse to Section 42 was conditioned by the provision in

Section 36, which authorizes authorities to alter or revoke schemes, while confirming them; in that case the new scheme must be published,

objections heard and decided and the scheme has to be confirmed once again in accordance with the procedure under Sections 19 and 20 of the

Act. The court, however, repelled the contention, in the following terms:

To put it differently the contention of the appellant was that the power of the State Government u/s 42 was controlled by the procedure prescribed

under. 36 if it is involved a variation of the confirmed scheme and the order of the Director dated March 8, 1957 was ultra virus since the

procedure contemplated by Section 36 of the Act has not been followed. In our opinion there is no justification for this argument. Section 42 of the

Act as amended by Act 27 of 1960 authorized the State Government to interfere with the scheme of consolidation or repartition made under the

Act. What the amending Act has done is to substitute for the words ''any order passed by any officer under this Act'', the words ''any order

passed, scheme prepared or confirmed or repartition made by any officer under this Act''. Section 36 of the Act on the other hand authorizes the

authority confirming a scheme to alter or revoke it and in that case the new scheme must be published, objections heard and decided and the

scheme has to be confirmed once again in accordance with the procedure under Sections 19 and 20 of the Act. In our opinion the power

conferred on the State Government u/s 42 is a separate power independent of Section 36 of the Act which deal with the power of the authority

confirming the scheme. There is hence no force in the contention that the scheme of consolidation cannot be varied by the State Government u/s 42

of the Act except in accordance with Section 36 of the Act. The reason for the two different provisions in Sections 36 and 42 of the Act is also

clear for if a scheme is varied or revoked by the authority confirming it, then the new scheme has to be published so that interested parties may

object and their objection decided by competent authorities set up under the Act, those decisions being finally appealable to the State Government.

But when a scheme is to be varied by the State Government itself u/s 42 of the Act there is no requirement of the statute that the varied scheme

should be published for the State Government is required to give notice and to given an opportunity to the interested parties to be heard before the

variation is made. We are Therefore of the opinion that the power conferred on the State Government by Section 42 is not controlled by Section

36 and the procedure of publication and hearing objections contemplated by Sections 19 and 20 of the Act is not necessary. Section 36 and 42

envisage two different situation and the intention of the Act is to give powers respectively to the Confirming Authority and to the State Government

to act under these sections in their discretion in any particular case. We accordingly hold that Mr. Bishen Narain is unable to make good his

argument on this aspect of the case.

In view of the clear declaration of law, the contention of the petitioner regarding lack of power of the Financial Commissioner to confirm, or

vary the scheme have to be rejected. Another reason why this contention cannot be accepted on the facts is that all the villagers, including affected

parties, as well as the petitioners were put to notice. There was widespread participation in the proceedings before the Financial Commissioner.

The petitioner''s counsel, in fact suggested the procedure. No manner of prejudice has been claimed, except the vague and general arguments on

the basis of assumed loss of appellate forum. I Therefore find no merit in these contentions. The impugned order cannot be faulted as having been

made without jurisdiction.

The second serious ground urged was that the Financial Commissioner erred in not following the rules framed under the Act, as amended in

1992. Those rules stipulated that anyone allotted lands in extended Lal Dora had to surrender three times the extent of the plot allotted. The

contention here was that since the amendment had been made as on the date of the impugned order i.e. in 1992, the Financial Commissioner, while

varying the scheme, could not ignore it, and was duty bound to apply the amended provisions.

The petitioners had relied upon the decision of the Supreme Court in Mithilesh Kumari''s case (supra). The court had ruled that provisions of

the Benami Transactions (Prohibition) Act applied retroactively; consequently they operated in proceedings pending on the date of its

commencement. However, this reasoning was overruled, in relation to the same Act, in R. Rajagopal Reddy and Others (deceased by legal

representatives) Vs. Padmini Chandrasekharan (deceased by legal representatives), . The court relied upon a previous decision reported as

Garikapatti Veeraya Vs. N. Subbiah Choudhury, , where it was held that:

The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so

construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.

The Supreme Court followed the same reasoning, i.e. amendments made during pendency of proceedings, cannot ordinarily apply, unless a

contrary intention appears from the provisions, in its later decisions Raminder Singh Sethi Vs. D. Vijayarangam, , C. Gangacharan Vs. C.

Narayanan, . In view of this settled legal position, I find no merit in the contention of the petitioners that the impugned order is in error, as it did not

adhere to amendments carried out during the pendency of proceedings.

Neither in the petition nor during the hearing, was the element of prejudice to the petitioners brought to the notice of the court. The entire tenor

of arguments were regarding the procedure and illegality of the impugned order. In view of the above findings, I find no merit in Writ petition No.

348/1993. It is accordingly dismissed.

The petitioners in WP 5815/2000 are aggrieved by an order of the Financial Commissioner dated 27-7-2000. They claim to have purchased

lands from the first two petitioners in WP 348/2000 (who are arrayed as Respondent Nos 5 and 6) on 24-12-1985. They were aggrieved by

orders of the Consolidation officer made pursuant to the impugned order in WP 348/93. They had approached this Court directly; but their writ

petitions were disposed with permission to them to approach the Financial Commissioner. In the order of the Financial commissioner, the

proceedings were adjourned sine die to await the outcome of proceedings in some other case. I am of the considered opinion that the Financial

Commissioner should hear and decide the revisionists, on the merits. Accordingly a direction is issued that the revision petition of these petitioners

should be decided, in accordance with law, after hearing all parties, within 4 months from today.

In view of the above, WP No. No. 348/1993 is dismissed. WP 5815/2000 is disposed off with direction to the Financial Commissioner to

decide Case No. 145/2000-CA, i.e the petitioner''s revision petition, in accordance with law, after hearing parties, within 4 months.

No costs.