Gram Panchayat of Village Bakhtari, Tehsil and District Sangrur v. Additional Director, Consolidation of Holdings, Punjab
2014-01-20
FATEH DEEP SINGH, HEMANT GUPTA
body2014
DigiLaw.ai
Judgment HEMANT GUPTA, J. The challenge in the present writ petition is to order passed by the learned Additional Director Consolidation of Holdings, Punjab (Annexure P/1) in exercise of powers under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 cancelling the area reserved for Charand and the Consolidation Scheme in the village be amended accordingly. The present writ petition has been preferred by Gram Panchayat of village Bakhtari pointing out that the consolidation was completed prior to 1961 and the land in dispute vested in Gram Panchayat in terms of mutation No.374. It was on 23rd October, 1989 the private respondents No.2 to 7 submitted a petition under Section 42 of the Act, which was withdrawn on 2nd January, 1990. Thereafter, another petition was filed on 9th April, 1990 which has been allowed by the Additional Director, Consolidation of Holdings, Punjab vide order dated 21st May, 1990 the order impugned in the present writ petition. It is pointed out that Khatauni Istemal prepared by the Consolidation Authority according to jamabandis for the year 195657 shows that the land allotted in lieu of the land before consolidation. The disputed land before and after consolidation was depicted as “Shamlat deh Hasab Hissas Mandarja Shajra Nasab”. Is is thus contended that the same was not a bachat land and, thus, cannot be partitioned amongst the proprietors of village. The challenge to the order is on the ground that respondents No.2 to 7 have invoked jurisdiction of Additional Director after 34 years of the finalization of partition process and that Additional Director has no jurisdiction to order partition and that too after long lapse of time. It is contended by learned counsel for the petitioner, during the course of hearing that power under Section 42 of the Act can be exercised at any time but such power is restricted to correction of mistake but not to alter the scheme at any point of time. It is contended that in terms of jamabandis for the year 1961-62, land vests in Gram Panchayat and, thus, Additional Director cannot exercise jurisdiction to oust certain land vested with the Gram Panchayat in terms of the Consolidation Scheme.
It is contended that in terms of jamabandis for the year 1961-62, land vests in Gram Panchayat and, thus, Additional Director cannot exercise jurisdiction to oust certain land vested with the Gram Panchayat in terms of the Consolidation Scheme. Reference is made to the judgment dated 9th September, 2013 passed by Division Bench of this Court in CWP No.11383 of 1990 Gram Panchayat Village Sadhoheri, Tehsil Nabha, District Patiala vs. Additional Director, Consolidation of Holdings, Punjab and others wherein, somewhat in similar circumstances, the jurisdiction of Additional Director after long lapse of time was found to be without jurisdiction. Learned counsel for the respondents referred to the scheme and contended that it is a bachat land and, thus, it was a mistake apparent which has been corrected by order impugned in the writ petition. We have heard learned counsel for the parties. We find that the order passed by the Additional Director is not sustainable inter alia for the reason that the respondents have invoked the jurisdiction of Additional Director after 34 years and that too to seek amendment of the scheme which is not permissible. The land which was vested with the Gram Panchayat cannot be ousted from the ownership of Gram Panchayat by exercising jurisdiction under Section 42 of the Act. The relevant extract from the scheme which is being sought to be amended read as under: “The Shamlat Deh which has now been left and the deduction of this area shall be made according to their respective shares from the area of the rightholders or from the area of the Pati. The previous value of Shamlat shall be divided according to the respective shares.” Learned counsel for the respondents argued that part of the scheme where the “previous value of Shamlat deh is divided according to the respective shares” deals with the bachat land, therefore, the impugned order passed is to give effect to this part of the scheme. We do not find any merit in the said argument. The Shamlat deh after applying prorata cut from the respective shares of the rightholders has been carved out. The expression "previous value of Shamlet deh shall be divided according to the respective shares” contemplates that the existing share in the Shamlat deh in the pre-consolidation period will be taken into consideration for determining the shares of rightholders in the fresh carved out khewat of Shamlat deh.
The expression "previous value of Shamlet deh shall be divided according to the respective shares” contemplates that the existing share in the Shamlat deh in the pre-consolidation period will be taken into consideration for determining the shares of rightholders in the fresh carved out khewat of Shamlat deh. Still further in an application filed by respondents, it is pleaded that the scheme is illegal. There is no averment that there is any mistake in the scheme. The findings of the Additional Director is also to amend the scheme. The relevant extract of findings is as under: “The remaining Bachat area which came under cut in excess of the area for use of common purposes and which Bachat area is still in possession of the rightholders is to be identified and determined for the purposes of reversion to the rightholders. Area reserved for the Charand (Pasture) in the Scheme has been cancelled and the Consolidation Scheme of the village is amended in this extent. The case is therefore, sent to the Consolidation Officer with the direction that he should identify and determine the shares of the rightholders in the Bachat land keeping in view the transactions, alienations, if any, effected by the rightholders. He is further directed to distribute this land among the rightholders in accordance with their shares and the Scheme to that extent be treated as amended.” In view of the above, we find that the order passed by the Additional Director, Consolidation of Holdings, Punjab (Annexure P/1) so as to distribute the land amongst the rightholders after amending the scheme is not sustainable. Consequently, the present writ petition is allowed, while, setting aside the order passed by Additional Director, Consolidation of Holdings, Punjab (Annexure P/1).