Tarlochan Singh vs State of Punjab

D.V. Sehgal, J.

This judgment will dispose of C.W.P. Nos. 4679 of 1983 and 5243 of 1982 as through both these petitions an order dated 19.2.1982 (Annexure P.2 in C.W.P. No. 4679 of 1983) passed by the Director, Consolidation of Holdings, Punjab, Chandigarh, has been challenged.

In C.W.P. No. 4679 of 1983, the order dated 31.12.1982 (Annexure P.4) passed by the Additional Director, Consolidation of Holdings, Punjab, Jalandhar, has also been challenged, but this order is consequential to the order dated 19.2.1982 and shall fall through if the order dated 19.2.1982 is quashed.

The facts in brief are that consolidation of holdings proceedings in village Bhungerni, tehsil and district Hoshiarpur, were taken out in the year 1954. A notification under section 14 (1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act), was issued on 15.6.1954. The scheme was drafted and published in the village on 8.11.1955 and confirmed on 20.2.1956. Proceedings under section 21 (1) of the Act were finalised on 30.3.1956. The possession in pursuance of the scheme finalised could, however, be not transferred to the respective landowner because civil writ petitions were filed by some aggrieved landowners in this Court and resultantly the scheme was quashed. On an appeal filed by the State Government, the judgment of this Court was quashed by the Supreme Court on 1.5.1968 and the scheme was upheld.

As a sequel to the judgment of the Supreme Court, the Consolidation Authorities should have implemented the scheme but no action in this regard was taken. Rather a fresh scheme was prepared and published in the village on 13.11.1972 and it was confirmed on 6.1.1973 and as a consequence the repartition under Section 21 (1) of the Act took place in the village on 2.4.1973 and the possessions were transferred. The proceedings under sections 21 (3) and 21 (4) of the Act were also completed. The repartition proceedings, thus, carried out were, however, challenged by the aggrieved landowners before the Additional Director, Consolidation of Holdings, Punjab, Chandigarh, who vide his order dated 28.1.1980 Annexure P. 1 held that the scheme prepared and published on 13.11.1972 and confirmed on 6.1.1973 was null and void. He directed the Consolidation Authorities to initiate proceedings regarding consolidation of holdings in the village on the basis of the original scheme confirmed on 20.2.1956. He also directed that wherever on account of passage of time it was not possible to implement the scheme confirmed on 20.2.1956 the rightholders and the Consolidation Authorities would be at liberty to seek amendment of such provisions of the scheme as might have become incapable of being implemented. In pursuance of this direction, the Consolidation, Authorities initiated action. However, in the implementation of the scheme confirmed on 20.2.1956 various difficulties were encountered. The Consolidation Officer and the Settlement Officer through their reports submitted to the Director made recommendations/suggestions which as noticed briefly in the order Annexure P. 2 are as under :

(i) The valuation done in the year 1956 be revised.

(ii) The valuation of trees, bores, and wells should be revised.

(iii) The working out of major portions be based on whatever record is available for the period prior to 1972.

(iv) The roads, paths provided in the scheme framed in the year 1972 which have been metalled at the spot should be kept intact.

(v) The provisions relating to the allotment of plots in Abadi and carving out of Kurras should be amended keeping in view the changed circumstances and the position at the spot.

(vi) The Advisory Committee should be reconstituted.

(vii) The list of common purposes should be revised and determined afresh.

(viii) The common pool system should not be changed and the allottees should be asked to approach the Rehabilitation Department for making good the deficiency in their areas, if any, in this respect.

It was noticed by the Director that since a period of about 27 years had elapsed since the original scheme was confirmed on 20.2.1956, the position in the village had changed considerably. In 1956 there were 99 wells in the village and almost all of them have been abandoned and their super structures have been sold by their owners. Now there are 134 tubewells with diesel engines and 24 electric tube wells working in the village. The possession of lands has changed hands and as a result of subsequent improvements effected by the persons who were allotted land during the repartition done in 1972 which was annulled by order Annexure P. 1. The very basis of evaluation of the land had changed. The Director consequently through the impugned order dated 19.2.1982 Annexure P.2 came to the conclusion that there was no other alternative than to revoke the scheme confirmed on 20.2.1956 and substitute it by a fresh scheme. However, while directing framing of such a scheme, he laid down the following guidelines for the Consolidation Authorities :

``A fresh scheme by and large similar to the one adopted in the year 1972 should be prepared in consultation with the Village Advisory Committee as provided for in the Rules. While framing this scheme, the major portions should be worked out on the basis of the entries made in the Jamabandi for the year 194546 after incorporating therein the mutations sanctioned upto Kharif 1972. The Girdawari for Kharif 1972 should be relied upon for partitioning of the joint Khatas. The valuation for lands, trees, wells etc adopted for the scheme drawn up in the year 1972 should be acted upon.''''

The learned counsel for the petitioners has assailed the order Annexure P. 2 on the following grounds namely,

(i) that the order Annexure P. 2 amounts to a review of the order Annexure P.1. While in the order Annexure P. 1 the scheme confirmed on 20.2.1956 was ordered to be implemented and the scheme framed in 1972 was annulled, the impugned order directs revocation of the former scheme and implementation of the latter;

(ii) that if on complying with the directions contained in the order Annexure P.1, difficulties were encountered in the implementation of the scheme confirmed on 20.2.1956 and it was considered inevitable to revoke the said scheme, the Director ought to have ordered framing of a fresh scheme on the basis of the position prevailing in the village taking into account all the improvements and changes uptodate and should not have related back the fresh scheme to the position obtaining in the year 1972.

I have heard the learned counsel for the parties at length. I do not agree with the first contention of the learned counsel for the petitioners. In my view, after having encountered difficulties in implementing the scheme confirmed on 20.2.1956, the order revoking the same does not amount to a review and is thus not hit by the law laid down by Deep Chand v. Additional Director, Consolidation of Holdings, Punjab, Jullundur, 1964 P.L.R. 318 (Full Bench).

I, however, find force in the second contention of the learned counsel for the petitioners. If by passage of time extending over 16 years from 1956 to 1972 the conditions obtaining in the village had substantially changed which made the implementation of the 1956 scheme difficult, a further passage of a period of 10 years, from 1972 to 1982 had also brought about further changes. By relating the new scheme, as ordered through the impugned order, back to the position that obtained in 1972 the scheme of 1972, which had in fact been annulled by the order Annexure P. 1, would be revived. This is neither just nor proper nor lawful. It is but mete and proper that the new scheme should be based on the conditions now prevailing in the village and the mutations sanctioned uptodate should be taken into consideration.

I, therefore, partly allow these petitions. While the order dated 19.2.1982 Annexure P.2 of the Director revoking the scheme confirmed on 20.2.1956 is upheld, his direction that the fresh scheme should be prepared by and large similar to the one adopted in the year 1972 by taking into account the mutations sanctioned upto Kharif 1972 is quashed. Instead it is directed that the fresh scheme should be prepared on the basis of the conditions now obtaining in the village and the mutations sanctioned uptodate should be incorporated therein. The latest Khasra Girdawaris should be relied on for partitioning the joint Khatas. The valuations for lands, trees, wells should also be made afresh. Since the order Annexure P.4 is consequential to the order Annexure P.2, the same is quashed. Because of the partial success of the petition, the parties are left to bear their own costs.