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2007 DIGILAW 1453 (DEL)

SARUP SINGH v. LT. GOVERNOR OF DELHI

2007-07-23

BADAR DURREZ AHMED

body2007
BADAR DURREZ AHMED, J. ( 1 ) MR Varma, the learned counsel appearing for the petitioner, drew my attention to the order passed by this Court on 24. 04. 2000 wherein it was recorded that the learned counsel for the respondents were unable to explain as to why the consolidation proceedings had started all over again in 1996 if the consolidation had been completed in the year 1988 and the petitioners had been put in possession as per the case of the petitioners. To enable the respondents to present their case, the matter was adjourned and the relevant records including the record regarding the consolidation proceedings in the year 1988 was directed to be brought on record. ( 2 ) MR Varma then referred to the order dated 30. 01. 2002 which, inter alia, reads as under:- "it is pointed out by learned counsel appearing for the petitioners that in an earlier writ petition being CWP No. 1500/1988, a statement was made by the learned counsel for the state that the consolidation proceedings, which are also the subject matter of the instant writ petition, had been completed. Learned counsel for the petitioners points out that since the consolidation proceedings stand completed, there can be no scope for amendment of the scheme of consolidation. In support of his submission, he has relied upon the decision of this Court in Suraj Mal and Anr. Vs. Manohar Lal ILR (1973)1 Delhi 1016. The division Bench of this Court held as follows: ". . . The language of Section 36 cannot be so construed as to vest in the authority confirming the scheme a residue of power to amend or end the scheme after any length of time and even recurrently. The phrase thus cannot be extended to a period after the Settlement Officer has ceased to function. The power under the section cannot be exercised after the new record of rights comes into force. . . . " As is apparent from the aforesaid judgment, the power under Section 36 of the east Punjab Holdings (Consolidation and Prevention of Fragmentations) Act, 1948 cannot be exercised after the record of rights comes into force. Keeping the aforesaid judgment in view, we enquired from the learned counsel for the State as to whether record of rights was prepared on the completion of the scheme. Keeping the aforesaid judgment in view, we enquired from the learned counsel for the State as to whether record of rights was prepared on the completion of the scheme. Learned counsel states that some part of the record of rights was prepared. We fail to appreciate the statement of learned counsel for the state. Let the record of rights be produced on the next date. The office shall send the file of CWP No. 1500/1988 to this Court on the next date. To come up on 18th March, 2002. " The next order referred to by Mr Varma was the one passed on 18. 03. 2002, which also has a material bearing on this case and is accordingly reproduced herein below: "o R D E R 18. 03. 2002 learned counsel for the State Mr. V. Shankra states that while it is correct that factum of delivery of possession to the land owners governed by the scheme for Consolidation of Holdings of 1970 stands recorded in the record of rights, some of the entries have not been correctly made as possession was not actually handed over. To say the least, the State is taking a peculiar stand. Though it has been stated before us that entries were wrongly made, the State has not taken any action against the persons who were responsible for making the alleged wrong entries. The consolidation proceedings were started in the year 1970 and the same were completed on 22nd July, 1988. The entries relating to handing over of the possession of concerned land were recorded in the record of rights on 15th June, 1988. After a lapse of several years, the State wants to amend or add to the consolidation scheme by taking a strange plea that the entries in the record of rights were not correctly made. " ( 3 ) THE position that obtains today is that the record of rights has not been produced before this Court despite several opportunities. CWP 1500/1988, which was mentioned in the orders referred to above, was disposed of on the ground that the consolidation proceedings had come to an end in 1988 and the possession had been handed over as per the scheme itself. ( 4 ) MR Verma referred to the provisions of Section 24 of the East Punjab holdings (Consolidation and Prevention of Fragmentation ) Act, 1948, which reads as under:- "24. ( 4 ) MR Verma referred to the provisions of Section 24 of the East Punjab holdings (Consolidation and Prevention of Fragmentation ) Act, 1948, which reads as under:- "24. Coming into force of scheme- (1) As soon as the persons entitled to possession of holdings under this Act have entered into possession of the holdings, respectively allotted to them the scheme shall be deemed to have come into force and the possession of the allottees affected by the scheme of consolidation or, as the case may be, by repartition, shall remain undisturbed until a fresh scheme is brought into force or a change is ordered in pursuance of provisions of sub-section (2), (3), (4) of Section 21 or an order passed under Section 36 or 42 of this Act. (2) A Consolidation Officer shall be competent to exercise all or any of the powers of a Revenue Officer under the Delhi Land Revenue Act 1954, or the U. P. Land Revenue Act, 1901, as in force in the Union Territory of Delhi, as the case may be, for purposes of compliance with the provisions of sub- section (1 ). " He submitted that after the scheme is prepared and the persons entitled to possession of holdings enter into possession, the scheme is deemed to have come into force. By virtue of the said provision, the possession of the allottees is to remain undisturbed until a fresh scheme is brought into force or a change is ordered pursuant to provisions of Section 21 or an order is passed under Section 36 or Section 42 of the said Act. In the present case, the respondents have sought the invocation of Section 36 to bring about an amendment to the scheme. The entire case of the respondents rests upon the interpretation of Section 36 of the said Act. Section 36 reads as under:- "36. Power to vary or revoke scheme- A scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by the authority which confirms it subject to any order of the Chief Commissioner 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. " the key expression used in the said Section is " "at any time". " the key expression used in the said Section is " "at any time". This expression has been interpreted by a Division Bench of this Court in the case of Suraj Mal and Another v Manohar Lal: ILR 1973 1 Delhi 1016 wherein, referring to a full bench decision of Punjab High Court in Bhikan and Others v The Punjab State and others: 1963 PLR 368 , the Division Bench observed as under:- "that the phrase "at any time" does not mean at any time unlimited in point of duration, unregulated in point of intermittency or unguided in point of frequency. The power of the Chief Commissioner or any authority under the Act to revoke a scheme or vary an order must be read to mean during the consolidation proceedings. In other words, this power cannot be exercised once the scheme is deemed to have come into force and the possession to the allottees covered by the scheme of consolidation or, as the case may be, by repartition, has been given subject, of course, to any change that may be ordered in pursuance of the provisions of Sub-section (2), (3) and (4) of Section 21 or an order passed under Section 36 or Section 42 of the Act, provided the order under Section 36 is passed during the consolidation proceedings. " The position, therefore, is very clear that once the Settlement Officer ceases to function or, in other words, becomes functus officio, the power under Section 36 of the said Act cannot be invoked to vary or amend any scheme. The settlement Officer becomes functus officio when the scheme comes into force as indicated in Section 24 of the said Act, that is, upon possession being handed over consequent upon the consolidation scheme. Admittedly, that point of time has already elapsed and, therefore, Section 36 could not have been invoked by the respondents in view of the clear decision of the Division Bench of this court as well as of the full Bench of the Punjab High Court. ( 5 ) ACCORDINGLY, the order dated 18. 10. 1996 in respect of consolidation proceedings for village Mundela Khurd is quashed. The possession of the petitioner cannot be disturbed unless and until a fresh scheme is formulated consequent upon following the procedure laid down under the Act. ( 5 ) ACCORDINGLY, the order dated 18. 10. 1996 in respect of consolidation proceedings for village Mundela Khurd is quashed. The possession of the petitioner cannot be disturbed unless and until a fresh scheme is formulated consequent upon following the procedure laid down under the Act. It shall be open to the respondents to carry out consolidation proceedings afresh in terms of the Act by issuing an appropriate notification. This writ petition stands allowed to the extent indicated above.