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2003 DIGILAW 352 (HP)

Jindu v. State Of Himachal Pradesh

2003-11-28

R.L.KHURANA

body2003
JUDGMENT : R.L. Khurana, J. – 1. The facts leading to the filing of the present petition under Article 226/227, Constitution of India, briefly, may be thus stated. A notification under Section 14 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (for short, the act) was published in the year 1984. No objections were raised by anyone to the consolidation proceedings. Nor any objections under Section 21 of the Act were filed. The Consolidation Scheme was accordingly published under Section 22 of the Act. None availed of the remedies available under Section 30 of the Act. While the consolidation proceedings were at the final stage, a writ petition being CWP No. 334 of 1988 came to be filed by Shri Birbal Singh and 25 others, residents of village Dakhyora, Tehsil Barsar, District Hamirpur, assailing the consolidation proceedings. The said writ petition was dismissed by a Division Bench of this Court on 26.7.1990. It was observed :- "The consolidation proceedings are at the final stage, we do not see any ground to interfere with the consolidation proceedings. It is open to the petitioners to resort to further remedies, if any, available under the Act. The writ petition is dismissed as indicated above." 2. It appears that after the dismissal of the writ petition (CWP No. 334 of 1988), one Shakti Chand, who was petitioner No. 2 in the said writ petition, on 17.3.1994 moved an application to the Director (Consolidation) on the basis of which the Director called for a detailed report from the Settlement Officer (CH), Hamirpur with regard to the fact whether possession of the land had been exchanged or not. The Settlement Officer reported that possession of the right - holders of the village stood changed only in the revenue record and that actual possession at the spot has not been exchanged. On the basis of such report the State Government on 20.6.1996 vide Annexure PC revoked the work of consolidation already carried out and granted sanction for fresh consolidation work. 3. Aggrieved by the order dated 20.6.1996 (Annexure PC) the petitioners have approached this Court by way of the present petition assailing the said order revoking the consolidation proceedings and directing fresh consolidation. It is averred that it was not open to the respondent Nos. 1 to 3 under the Act to revoke the Scheme which stood finally confirmed. 3. Aggrieved by the order dated 20.6.1996 (Annexure PC) the petitioners have approached this Court by way of the present petition assailing the said order revoking the consolidation proceedings and directing fresh consolidation. It is averred that it was not open to the respondent Nos. 1 to 3 under the Act to revoke the Scheme which stood finally confirmed. According to the petitioners the right holders have been placed into actual possession of their respective lands accordingly to the approved Scheme and they have spent huge amounts in developing such lands and have been enjoying the fruits thereof since long. 4. The respondent Nos. 1 to 3 in their reply affidavit have pleaded that as many as 27 right holders were not satisfied with the consolidation proceedings and had prayed for carrying out the consolidation proceedings afresh. Since actual possession had not been delivered according to the Scheme and only entries were changed, the consolidation proceedings were rightly revoked and fresh proceedings ordered. 5. It may be stated that the stand taken by respondent Nos. 1 to 3 in the present case is absolutely contradictory to the stand taken by them in the earlier writ petition being CWP No. 334 of 1990. Annexure PA is the copy of reply affidavit filed by respondent Nos. 1 to 3 specifically pleaded and averred :- (a) "Consolidation work has been completed in the village and no objection could be raised by the petitioners therein since they had failed to raise any objections under Section 14 of the Act; (b) The consolidation proceeding could not be cancelled at such belated stage as it would cause irreparable loss to the right holders; (c) Remedy under Section 54 of the Act was open to the petitioners; (d) Maximum number of right - holders had accepted the consolidation operation and possession transferred amongst themselves barring eleven right holders (named in para 12 of the reply affidavit; (e) Only four appeals under Section 30 (3) of the Act were stated to be pending." 6. As against the earlier stand that possession of the lands stood transferred to the right - holders respondent Nos. 1 to 3 have now come up with the stand that possession at the spot were never transferred/exchanged. Such plea, on the face of it, is wrong and false in view of the earlier stand of the respondents. 7. As against the earlier stand that possession of the lands stood transferred to the right - holders respondent Nos. 1 to 3 have now come up with the stand that possession at the spot were never transferred/exchanged. Such plea, on the face of it, is wrong and false in view of the earlier stand of the respondents. 7. It is contended on behalf of the respondent Nos. 1 to 3 that consolidation proceedings were revoked vide the impugned order in exercise of the powers under Section 46 of the Act. Section 46 of the Act provides :- "A scheme for the consolidation of holidays confirmed under this Act, at any time, be varied or revoked by the Authority which confirms it subject to any order to the State Government, that may be made in relation thereto and a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act." 8. A scheme for consolidation of holdings is required to be confirmed under Section 29 of the Act. The authority to confirm such a scheme is the Settlement Officer (Consolidation). Reading Sections 27 and 46 of the Act together, the power to vary or revoke the Scheme under Section 46 of the Act, subject to any order that may be made by the State Government, vests in the Settlement Officer (Consolidation). 9. In the present case the impugned order (Annexure PC) has not been passed by the competent authority. Therefore, on this short ground alone the said order cannot be sustained. 10. Even if it be assumed that the impugned order (Annexure PC) has been passed by a competent authority under Section 46 of the Act, such order is bad and cannot be sustained. 11. Under Section 46 of the Act the competent authority has the power "to modify or revoke the scheme and to prepare, publish and confirm a subsequent scheme in accordance with the provisions of the Act." 12. A bare perusal of impugned order (Annexure PC) shows that the earlier scheme prepared, published and confirmed under Section 29 of the Act was neither modified nor revoked. Only the proceedings conducted in pursuance of such published and confirmed scheme appear to have been revoked and set aside, which could not have been done in exercise of the powers under Section 46 of the Act. 13. As a result, the present writ petition is allowed. Only the proceedings conducted in pursuance of such published and confirmed scheme appear to have been revoked and set aside, which could not have been done in exercise of the powers under Section 46 of the Act. 13. As a result, the present writ petition is allowed. The impugned order (Annexure PC) is quashed and set aside and status quo ante ordered to be restored. Respondent Nos. 1 to 3 are directed to carry out the consolidation operations in accordance with the published and confirmed scheme and in accordance with the provisions of the Act. Parties are left to bear their own costs. 14. It may be clarified that this order will not preclude the respondent Nos. 1 to 3 to proceed with the matter afresh by taking resort to either Section 16 or Section 46 of the Act in accordance with law.