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2012 DIGILAW 703 (PNJ)

Jarnail Singh v. Additional Director of Consolidation of Holdings

2012-05-10

RAJIVE BHALLA, RAKESH KUMAR JAIN

body2012
JUDGMENT RAJIVE BHALLA, J. (ORAL) The petitioners pray for issuance of a writ of certiorari for quashing order dated 21.3.1986 passed by Additional Director, Consolidation of Holdings, Punjab, directing partition of “Jumla Mushtarka Malkan” land. Counsel for the petitioners submits that after the enactment of Sections 11 and 13-B of the Punjab Village Common (Regulations) Act, 1961 (hereinafter referred to as “the 1961 Act”), the Additional Director Consolidation of Holdings has no jurisdiction to entertain a plea whether land has or has not been reserved for common purpose. In case a party raises such a plea, it shall be required to approach the Collector, exercising power under section 11 of the Act. Reliance for the above argument is placed upon a judgment in Gram Panchayat, Village Sidh versus Additional Director, Consolidation of Holdings, Punjab, 1997 (1) PLJ 313. No one has put in appearance on behalf of the respondents. We have heard counsel for the petitioners, perused the impugned order and the aforementioned judgment as also Sections 11 and 13-B of the 1961 Act. The question whether land vests or does not vest in a Gram Panchayat, can only be determined by the Collector exercising powers under section 11 of the 1961 Act. If an authority, other than the Collector, records a finding that land was, or was not reserved for common purposes of the Gram Panchayat during consolidation, such an authority, in essence, determines, whether the land vests or does not so vest in a Gram Panchayat, a power vested with the Collector, under section 11 of the 1961 Act. Such an order would necessarily be void for wrongful assumption of jurisdiction. The only authority, statutorily empowered, to make such a determination, is the Collector, exercising powers under section 11 of the 1961 Act. Section 13-B of the 1961 Act provides that provisions of the 1961 Act, shall prevail notwithstanding anything to the contrary in any law, or any agreement, instrument, custom or usage or any decree or order of any court or other authority. Section 13-B clearly sets out an unambiguous legislative intent that any order relating to matters, that are reserved for adjudication by authorities under the 1961 Act, if adjudicated upon by another authority, shall be null, void and without jurisdiction. Section 13-B clearly sets out an unambiguous legislative intent that any order relating to matters, that are reserved for adjudication by authorities under the 1961 Act, if adjudicated upon by another authority, shall be null, void and without jurisdiction. A perusal of the impugned order reveals that the Civil Writ Petition No. 3330 of 1986 3 Additional Director Consolidation of Holdings has, while considering an application filed by respondent no.3, held that land allotted to the Gram Panchayat during consolidation was not so reserved, thereby, holding that land does not vest in the Gram Panchayat. The Additional Director has, therefore, exercised the powers of the Collector under section 11 of the 1961 Act. The land was allotted to the Gram Panchayat during consolidation. Any plea that the land has been wrongly allotted or reserved etc. could only be raised before and decided by the Collector. A reference in this regard may be made to a judgment of the Hon'ble Supreme Court in Gram Panchayat, Village Sidh versus Additional Director, Consolidation of Holdings, Punjab, (supra). A relevant extract of the judgment reads as follows: “It is not disputed that consolidation proceedings were completed in the village in the year 1953-54. it is further not disputed that prior to consolidation proceedings, the entry regarding khewat No.78 measuring 1000 Bighas 16 Biswas was made in the jamabandi as “Shamlat Deh Hasab Rasad Raqba Khewat”. It is also not disputed that after the consolidation, the entry in the revenue record was in similar terms. The Additional Director Consolidation by the order dated May 1, 1990 changed the mutation entries in the revenue record and distributed part of the land amongst the right-holders. We are of the view that after the enforcement of the Punjab Village Common Lands (Regulation) Act, 1961, the Civil Writ Petition No. 3330 of 1986 4 question of ownership could only be decided by the Collector under Section 11 of the Act. Mr. Palli, learned counsel for the right-holders has contended that the area which was bachat area was distributed amongst the right-holders. It is a question to be decided by the Collector. The right-holders may raise all the points, if they wish to, before the Collector. Mr. Palli, learned counsel for the right-holders has contended that the area which was bachat area was distributed amongst the right-holders. It is a question to be decided by the Collector. The right-holders may raise all the points, if they wish to, before the Collector. We, therefore, allow this appeal, set aside the order of the Additional Director dated May 1, 1990 and also the order of the High Court dated September 12,1990 and remand the case to the Collector, District Patiala to decide the case afresh in accordance with law, after hearing the parties. No orders as to costs.” In view of what has been discussed hereinabove, it is apparent that the Additional Director Consolidation of Holdings, Punjab, had no jurisdiction, while exercising powers under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, to deprive the Gram Panchayat of its property. As a consequence, the writ petition is allowed, the impugned order is set aside, leaving it to the private respondent, to seek his remedy, in accordance with law, before a forum of appropriate jurisdiction.