The Gram Panchayat, Janal vs The Director Consolidation, Punjab and Others

Rajive Bhalla, J.—The Gram Panchayat of village Janal, Tehsil Sunam, District Sangrur is before us, challenging orders passed by consolidation authorities, directing transfer of land belonging to the Gram Panchayat and land from the "Jumla Mushtarka Malkan" khewat, to respondent Nos. 2 to 5.

Counsel for the petitioner submits that neither the Additional Director, Consolidation of Holdings, Punjab, nor the Consolidation Officer, had jurisdiction, to retrieve land from the Gram Panchayat or from the "Jumla Mushtarka Malkan", khewat and transfer it to the private respondents, particularly when the private respondents have neither pleaded nor proved any short-fall or error in their allotment. The mere fact that land, allotted to respondent Nos. 2 to 5, may have been of an inferior quality, could, at best, confer a right to pray for allotment of better quality land and then also from the person who has been wrongly allotted better quality land. A perusal of the impugned order reveals that respondent Nos. 2 to 5 have merely pleaded that inferior quality land allotted to them, be returned and superior quality of land allotted to the Gram Panchayat, be allotted to them, without pointing out of error in consolidation proceedings. Counsel for the petitioner further submits that jurisdiction under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as "the Act") is confined to correction of errors, and then also within reasonable time but the Additional Director Consolidation of Holdings, Punjab, has exercised power, after thirty years of conclusion of consolidation proceedings, without pointing out an error.

Counsel for the private respondents submits that the private respondents were allotted poor quality land. The Additional Director, Consolidation has, therefore, rightly ordered exchange of this land with land allotted to the Gram Panchayat and the "Jumla Mushtarka Malkan", khewat. The initial order passed by the Additional Director Consolidation, Punjab, on 22.4.1987, records that the Gram Panchayat was served but did not put in appearance. The averment in the writ petition that the Gram Panchayat was not served, is, therefore, incorrect. Counsel for the private respondents also submits that if a land-owner is wrongly allotted poor quality land, his land may always be exchanged with land belonging to the Gram Panchayat or the "Jumla Mushtarka Malkan", khewat which are the common lands of a village.

We have heard counsel for the parties and perused the impugned orders.

Before dealing with the arguments, it would be appropriate to briefly refer to the procedure of consolidation and thereafter to the facts.

The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, prescribes the procedure for consolidation of land holdings and requires the State, as the first step, to issue a notification, identifying a revenue estate for the purpose of consolidation. The Consolidation Officer, then updates the last jamabandi and in consultation with inhabitants of the revenue estate, prepares a scheme. The entire land of the revenue estate is then put into a common hotchpotch. The land holding of each individual land owner, including the "shamilat deh khewat," is valued. The different varieties of land, existing in a village, are assigned different value. A consolidated parcel of land is then allotted, in accordance with the entitlement of a land owner, based upon the valuation of his land. During this process, objections are invited and decided. A land-owner may be allotted inferior quality land, in which case, he is allotted a larger parcel of land and vice versa.

The Consolidation Officer, also applies a pro rata cut on the holding of proprietors and creates a variety of common land called "Jumla Mushtarka Malkan Wa Digar Hasab Rasad Raqba Khewat". The ownership of this land continues to vest in proprietors, but its management and control vests with the Gram Panchayat. Section 21(3), (4) and (5), enable an aggrieved person to file appeals. Section 42 of the Act, confers power on the State Government to rectify any error in consolidation proceedings "at any time".

Reverting to the facts of the present case, Consolidation proceedings, admittedly, concluded in the year 1958-59. The private respondent Nos. 2 and 3 did not raise any objection during consolidation proceedings but filed an application, under Section 42 of the Act, before the Additional Director of Holdings, Punjab on 8.4.1987, praying that as they have been allotted land which is low lying and a pond, the land may be exchanged with better quality land from "bachat land". The Additional Director of Consolidation passed an ex parte order against the Gram Panchayat, on 22.4.1987 by directing the Consolidation Officer to withdraw the land in dispute from the private respondents and allot equivalent land from "bachat"/gram panchayat land but after hearing the parties and examining the record.

After receipt of the order, the Consolidation Officer recorded that "the Sarpanch has not turned up in spite of advice" and initiated ex parte proceedings against the Gram Panchayat. The Consolidation Officer retrieved land from the Gram Panchayat, from the Jumla Mushtarka Malkan land and allotted it to respondent Nos. 2 and 3. As already noticed, the prayer was for allotment of alternative land from "bachat land", but allotment was made from land belonging and vesting in the Gram Panchayat. It would be appropriate at this stage to clarify that the expression "bachat land" denotes a parcel (s) of land left over after creation of "Jumla Mushtarka Malkan" land and is neither synonymous nor interchangeable with the expression "shamilat deh" or Jumla Mushtarka Malkan". The expression "bachat land" is, however, more often than not, intentionally misinterpreted by consolidation authorities to denote "Jumla Mushtarka Malkan" or "Shamilat Deh" and thereafter allotted to private owners.

The matter, however, does not rest here. Respondent Nos. 2 to 5, filed another application under Section 42 of the Act, before the Additional Director Consolidation, praying for deletion of their father''s name Pritam Singh and for fresh valuation of khasra No. 190, measuring 5K-10M. The Additional Director, vide order dated 24.12.1987, duly obliged by withdrawing 10K-10M, from the Gram Panchayat, 17K-12M from the Jumla Mushtarka Malkan, khewat and allotting it to respondent Nos. 2 to 5.

Labh Singh, a vigilant resident of village, filed an application, on 5.4.1989, before the Additional Director Consolidation, praying that the impugned orders may be set aside. The application was dismissed on 19.5.1989. Labh Singh filed Civil Writ Petition No. 9321 of 1989 which was allowed by setting aside the orders passed by the Additional Director and directing the Director Consolidation to pass a fresh order, after affording an opportunity to Labh Singh.

Labh Singh and the Gram Panchayat filed separate applications, before the Director Consolidation, on 29.1.1991, which were dismissed by separate orders. The Consolidation Officer, thereafter, served a notice dated 2.7.1991, directing the Gram Panchayat, to deliver possession.

A perusal of the impugned orders reveals that not only have they been passed in derogation to the rights of the Gram Panchayat but also suffer from an inherent lack of jurisdiction.

Section 42 of the Act, empowers the State, to rectify errors in consolidation proceedings "at any time" but the expression "at any time" must necessarily, as held by the Supreme Court in Gram Panchayat, Kakran Vs. Addl. Director of Consolidation and Another, (1997) 8 JT 430 : (1997) 6 SCALE 382 : (1997) 8 SCC 484 : (1997) 4 SCR 442 Supp and by a Division Bench of this Court in Gram Panchayat of village Khalaspur versus Gurmukh Singh and others (Civil Writ Petition No. 430 of 1986), decided on 18.3.2013, denote "reasonable time". A delay of 27 years cannot, in the absence of any bona fide explanation, be said to be reasonable so as to confer jurisdiction to re-open matters that concluded decades ago. A perusal of the impugned order reveals that no explanation was proffered for the delay of 27 years or considered by the Additional Director, while passing the impugned order. The Additional Director, Consolidation, therefore, had no jurisdiction to entertain the petition after more than 27 years of conclusion of consolidation process.

This apart, power, under Section 42 of the Act, may only be exercised if it is proved that an error was committed during consolidation proceedings. As already noticed, while narrating the nature of consolidation proceedings, a land owner may be allotted inferior quality of land, in which case, he is allotted a larger parcel of land. Thus, where a land-owner complains that he has been allotted inferior quality land, he is required to prove that he was allotted inferior quality land by an error and that in lieu of inferior quality land, he was not allotted a larger parcel of land. A perusal of the impugned orders reveals that the Additional Director, Consolidation, did not bother to ascertain whether there was any error or whether in lieu of inferior quality land, the petitioner had not been allotted a larger parcel of land but proceeded arbitrarily to pass the impugned order retrieving land from the Gram Panchayat.

Accepting for a moment that the petitioners were, indeed, allotted inferior quality land on account of an error in valuation, the Additional Director, Consolidation was required to, at least, refer to this error, particularly when he chose to exercise power, 27 years after conclusion of consolidation proceedings. A perusal of the impugned order reveals the absence of any such consideration, much less a reference to any error that would have conferred jurisdiction to pass an order under Section 42 of the Act.

Even if we were to disregard the delay and presume that there was indeed an error, the Additional Director, Consolidation had no power to retrieve land from the Gram Panchayat or the "Jumla Mushtarka Malkan", khewat, without holding that superior quality land was allotted to the Gram Panchayat on account of an error. The Director Consolidation retrieved property, belonging to Gram Panchayat and the "Jumla Mushtarka Malkan", as if it were his private property available as a largesse to distribute, to anyone, without reference to any error in valuation and allotment. The Additional Director, Consolidation, was required to identify the land owner who had been allotted land contrary to his entitlement and only thereafter order exchange of the land in dispute with land allotted to such land-owner.

In view of what has been recorded hereinabove, the writ petition is allowed, the impugned orders, being illegal, perverse and arbitrary, are set aside but with liberty to the private respondents, to seek redressal of their grievance, if permissible in law.