Gram Panchayat, village Naulakha vs Director Consolidation of Holdings, Punjab

R.S. Mongia, J.

This is a writ petition filed on behalf of Gram Panchayat of village Naulakha, Tehsil Sirhind, District Patiala, through its Sarpanch, challenging the order of the Director, Consolidation of Holdings, Punjab, Shri K.S. Minhas, dated 9th August, 1985, by which the respondents have been held to be entitled to the ownership of the land measuring 1998 Bighas 19 Biswas in old Khewat No. 89 (Jamabandi for the year 195556) and now Khewat Nos. 196/348 to 378 and 160/265 to 303. The Director had by this order directed the Consolidation Officer to make necessary changes in the record and had observed that since the start of the consolidation proceedings, lot of changes had taken place and some of the rightholders had already been given their shares through decrees, etc., these things would be taken into account by the Consolidation Officer and the new Khatas would be subject to these changes. On the request of the respondents (petitioners before the Director, Consolidation) the land in dispute was ordered to be distributed amongst the shareholders according to "Hasab Rasad Zar Khewat". The Consolidation Officer was directed to distribute the area in question to the rightholders in accordance with their shares subject to the condition that as far as possible each rightholder would be given the additional area with his existing kurra, and where this may not be possible, an additional Kurra may be given for that much area and service paths to such additional Kurras may also be provided. It may be noticed that the Director, Consolidation, in the impugned order had also observed that the Scheme of the Consolidation shall be deemed to have been amended to the abovementioned extent.

It has been averred in the petition that about 30 years prior to the filing of the writ petition, Consolidation of Holdings Scheme under the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Consolidation Act) was prepared and carried out and repartition etc. according to the Scheme had also taken place.It has been further stated in the petition that before the consolidation proceedings took place in the village there existed land which was Shamlat Deh to the tune of 1998 Bighas 19 Biswas. This land was shown as per Jamabandi for the year 195556, to be under the ownership and possession of the Panchayat. It is further the case of the petitioner that the Panchayat was giving the said land on Chakota to various persons and the Panchayat was imposition of most part of the said Shamlat land, though some part of it was under illegal and forcible possession of some right holders. According to the petitioner, not even a single person in the entire village out of the proprietary body ever raised any objection or questioned the Scheme during the past more than 30 years before it the filing of the petition. The repartition and other formalities had been completed strictly in accordance with the Scheme and the record of rights had also been prepared accordingly.

In the pleadings in the writ petition, it has further been averred that after coming into force of the Punjab Village Common Land (Regulation) Act, 1961 (hereinafter referred to as the ''Shamlat Act''), the Shamlat land automatically vested in the Gram Panchayat under Section 2(g) of the Shamlat Act. The land in question accordingly vested in the Gram Panchayat and mutation No. 1379 was sanctioned on 11th June, 1956 and the entire Shamlat land was mutated, in favour of the petitionerGram Panchayat.

Respondents No. 2 to 6, almost after 30 years of the completion of the consolidation of holdings in the village, in accordance with the Scheme, filed a petition under Section 42 of the Consolidation Act. The copy of the application has been attached as Annexure P1. The petition by the above mentioned respondents was filed before the Director, Consolidation against the Jumla Mushtarka Mulkan, through Gram Panchayat, village Naulakha. It was alleged in the application that prior to the proceedings under Section 21(1) of the Consolidation Act, the land which was described as Shamlat Deli was with the Jumla Mushtarka Malkan, but at the time of repartition, this was shown in the name of the Gram Panchayat, which resulted into the change of the title and that was notwithin the jurisdiction of Consolidation Staff under the Consolidation Act and the mutation which was sanctioned on 11th June, 1956 was illegal and had been sanctioned without hearing them. According to the respondents, the abovesaid fact had come to their knowledge on 1st May, 1985. The prayer made was that the mutation dated 11th June, 1956 in favour of the Gram Panchayat changing the ownership and making the Panchayat as owner of the land be set aside and correction be made accordingly. As observed above, this a application was allowed by the Director, Consolidation of Holdings in the terms as indicated in the opening paragraph of this judgment.

The counsel for the writ petitioner raised the following points :

(1) The Director, Consolidation of Holdings has no jurisdiction under the Consolidation Act to set aside a mutation which has not been sanctioned by any Consolidation Authority. Only the Revenue Authorities could set aside the mutation.

(2) The Director, Consolidation of Holdings, has no power to decide the question of title. Whether the land is Shamlat land or not is a question of title and prior to 15th April, 1976 (15th April, 1976 is the date when Section 13B was introduced in the Shamlat Act) could be determined by a Civil Court. After the introduction of Section 13B, the Authorities under the Shamlat Act could determine the question of title under Section 11 of the said Act.

(3) Whether it was necessary for the Director, Consolidation, to hear the Gram Panchayat before passing of the impugned order?

(4) Whether land, which is recorded as Shamlat DehHasab Rasad Zar Khewat, would fall within the definition of Shamlat Deh ?

(5) Whether the Scheme can be amended by the Director, Consolidation of Holdings, without referring to the earlier provisions of the Scheme and then to say what was being amended?

(6) Whether the Director of the Consolidation could straightaway entertain the petition of the respondents under Section 42 of the Act and that too after about 30, years of the finalisation of the consolidation proceedings.

I do not consider it necessary to go into all the points referred to above, which have been raised by the counsel for the writ petitioner, because of the view I am taking on Point No. (3) above.

As observed above, the petition by respondents Nos. 2 to 6 before the Director of Consolidation had been filed against Jamla Mushtarka Malkan through Gram Panchayat. It has been argued by the learned counsel for the petitioner that Gram Panchayat as such was not a party and in fact had not been served at all. The Director, Consolidation, in para 3 of the impugned order has observed as under :

"The Panchayat in this case was served through Sh. Devinder Singh Panch who was present on 26685 also. Mushtari Munadi was also got done in the village. The Sarpanch was not present in spite of service. Since one Panch was present, it will meet the ends of justice and the Panchayat is deemed to have been duly represented by him."

It would be seen from the above that the Panchayat had been served through Shri Devinder Singh Panch. The Panchayat could not have been served through a Panch nor there is anything on the record that he was duly authorised by the Panchayat to represent it before the Director, Consolidation. Mushtari Munadi was not sufficient service on the Gram Panchayat, as it is not the case that the Panchayat had ever refused to be served through the authorised person. Under these circumstances, it cannot be said that the Gram Panchayat was duly served and represented. In fact, Gram Panchayat was not even properly impleaded as a party before the Director, Consolidation. According to the learned counsel, the viewpoint of the Gram Panchayat was not placed before the Director, Consolidation and Devinder Singh Panch was not authorised to represent the Panchayat. According to him, had the Panchayat been given an opportunity to represent its case, the points referred to above would have been raised before the Director, Consolidation. The learned counsel further submitted that the authorities under the Shamlat Act have already come to the conclusion that the Panchayat is the owner of the land, against which the private parties have filed writ petitions.

The learned counsel for the private respondents, however, submitted that from the observation made by the Director, Consolidation, it was quite evident that the Gram Panchayat was duly represented.

After hearing the learned counsel for the parties, I am of the view that the Gram Panchayat was neither made a party properly before the Director, Consolidation nor it was properly represented to put forth its case. In this view of the matter, I consider it appropriate to send back the case to the Director, Consolidation, before whom all the points referred to above or any other point may be raised by the parties.

For the foregoing reasons, I accept the writ petition and quash the order of the Director, Consolidation, dated 9th August, 1985 (Annexure P2) and remand the case to the Director, Consolidation of Holdings, at Chandigarh to decide the case afresh after affording opportunity of hearing to both the parties before me and may also hear any other party which he may consider necessary. The parties will be at liberty to raise all or any of the above points and any additional point before the Director. The Director, Consolidation, would decide the matter within six months from the receipt of this order. The parties through their counsel are directed to appear before the Director, Consolidation of Holdings, Chandigarh on 30th May, 1991. There will be no order to costs.