Shiv Chand and another vs The Punjab State and others

D.S. Tewatia, J.—This regular second appeal arises out of a suit filed by the plaintiff-appellants where in they challenged the validity or a notice, dated 19th July, 1966, issued by. the Consolidation Officer u/s (4) of Section 30-A of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (Act 60 1948), hereinafter called the Act, for the demolition of their Kotha, which happens to fall over the Khal on the ground of lack of jurisdiction in the Consolidation Officer to issue such a notice under the provisions of the said section. The non-official defendants 3 to 5 contested the suit alleging that no Kotha existed at the time of construction of the khal (water-course) and that it had been recently constructed. On the pleadings of the parties the trial Court framed the following issues-

Whether the order of consolidation of Assistant Collector, First Grade, is illegal, void and without jurisdiction as alleged ?

Whether Kotha in question was constructed before or after the order in question, it t0, with what effect ?

Relief.

The trill Court found all the above issues against the plaintiffs and thus dismissed their suit. On appeal, the lower appellate Court upheld the judgment and decree of the trial Court and thus dismissed the appeal of the plaintiffs. Hence this regular second appeal at the instance of the plaintiffs.

It may be stated hens that the concurrent decision of the Courts below or issue No. 1 is that the construction in question was raised by the plaintiffs some time in the year 1963 after the Additional Director of Consolidation of Holdings had passed an order making provision for a water-course to the agricultural land of the respondent passing through some lands, including those of the plaintiffs. It is also an admitted fact that the repartition was carried out and the landowners were allotted their new holdings as a result of the said repartition and the records there after were consigned to the record-room on 31st March, 1961.

The only point that has been argued by the learned counsel for the appellants is that the consolidation officer his no authority to issue the impugned notice, and, therefore, it is illegal! and invalid.

For the proper appreciation of the submission made by the learned counsel for the appellant, consideration of the provisions of Section 30-A of the Act becomes necessary, which read-

30-A (1) After a notification under Sub-section (1) of Section 14 has issued and during the pendency of consolidation proceedings no land-owner upon whom the scheme will be binding shall have power without the sanction of the Consolidation Officer to cut trees from and erect buildings or other structures upon, any portion of his original holdings included in the scheme.

(2) If any person contravenes the provisions of Sub-section (1) he shall, an conviction, be punishable with fine which may extent to five hundred rupees.

(3) An offence under this section shall be congnizable and bailable.

(4) If any building or other structures is erected in contravention of the provisions of Sub-section (1) and the landowner fails to remove it with in one month of the date of publication of the Shajra under Sub-section (1) of Section 21, it shall, without payment of any compensation, vest in the new landowner who enters into possession of that holding as a result of repartition.

A mere perusal of the above provisions make it clear that the embrago that has been placed by Section 30-A (1) on cutting of trees or raising of constructions pertains to such constructions as are raised on original holding of a landowner and if a construction that has been raised by a landowner pertains to his holding which was allotted to him as a result of the repartition proceedings, then provisions of Section 30-A(1) of the Act are not attracted and the Consolidation Officer, in may opinion, will have no authority to issue notice under Sub-section (4) of Section 30-A of the Act calling upon such a land owner to remove the construction because the expression used in the said Sub-section that ''if the landowner fails to remove it within the one month of the date of publication of the Shajra under Sub-section (1) of Section 21, it shall, without payment of any compensation, vest in the new landowner who enters into possession of that holding as a result of repartition" envisages a construction raised by the land owner on his original holding and on the holding allotted to him as a result of repartition carried out under Sub-section (1) of Section 21 of the Act. The learned counsel for the respondents had not been able to point out any other provision under which the Consolidation Officer was authorised to issue such a notice to the appellants.

For the reasons recorded above, I hold that the impugned notice is invalid as the Consolidation Officer had no authority to issue the same and while quashing the same, accept this appeal, with the result that the suit of the plaintiff-appellants is decreed granting them the decree, as prayed for, There is no order as to costs.