BANSHI Vs. STATE
LAWS(RAJ)-1967-12-12
HIGH COURT OF RAJASTHAN
Decided on December 20,1967

BANSHI Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) THESE are three writ petitions presented by Banshi, Ranglal and Onkarsingh respectively challenging the validity of the proceedings for consolidation of holdings carried out by the Consolidation Officer under the provisions of the Rajasthan Holdings (Consolidation and Prevention of Fragmention) Act, No. 24 of 1954 (which will hereinafter be called the "consolidation Act" ). All the petitioners are Khatedar tenants in respect of certain agricultural lands situated in their respective villages. Their case, in brief, is that the Consolidation Act received the assent of the President on the 25th day of November, 1954 and was published in Rajasthan Gazette-Part IV-A, dated 11th December, 1954. By virtue of sec. 1 (3) of this Act, Chapters I and V of the Act came into force at once, whereas for the remaining Chapters, it was provided that they would come into force in such area and from such date as the State Government may, by notification in the official gazette, appoint in this behalf, and different dates may be appointed for the coming into force of different provisions of the said Chapters. It appears that under sec. 14 of the Act, with the objection of consolidating of holdings for the purpose of better cultivation of lands therein, the Director of Consolidation, Rajasthan, Jaipur, on his own motion declared by a notification his intention to make a scheme for the consolidation of holdings in the villages of the petitioners. A draft scheme was thereafter prepared and published in the prescribed manner in the areas concerned, and after finalization of the draft scheme the petitioners were allotted lands according to the scheme. The main grievance of all the petitioners is that the consolidation proceedings were carried out illegally and without authority of law, in asmuch as the provisions of Chapters III and IV of the Consolidation Act were not enforced at all, nor the procedure prescribed under the Act and the Rules made thereunder was followed. It was, therefore, prayed that the proceedings for consolidation be quashed.
(2.) THE respondents 1 to 4, namely, the State of Rajasthan and its officers submitted a joint reply to each of the Writ applications, and their contention is that the Rajasthan Holdings Consolidation Operation Validating Act, 1960 (Act No. 30 of 1960) which was published in the Rajasthan gazette Extraordinary dated 24th September, 1960 validated the consolidation operations undertaken in that area and therefore the proceedings carried out for consolidation of the petitioners' holdings cannot be challenged on that ground. THEy also asserted that all the provisions of the Act and the Rules made thereunder had been duly complied with in carrying out consolidation proceedings. THE petitioner Onkarsingh alone filed a rejoinder in which it was contended inter alia that the Rajasthan Holdings Consolidation Operation Validating Act. 1960 (which will hereinafter be called the Validating Act) can be of no avail to the respondents, in asmuch as it is an invalid piece of legislation as it did not receive the assent of the President. It may be stated that the other contention raised by the three petitioners in their writ applications are, though similar in law, slightly different on facts and therefore we first propose to deal with the contention regarding the validity of the Validating Act which is common to all the cases. Mr. Gupta, learned counsel for the petitioner Onkarsingh, who has advanced the leading argument in the case, has urged that by the provisions of the Consolidation Act, the State of Rajasthan wanted co-extinguish or modify the rights of the petitioners in respect of their holdings which fall within the ambit of the term "estate" as used in Art. 31a of the Constitution and since this Act sought to take away or abridge the rights conferred by Arts 19 and 31 of the Constitution, the assent of the President was rightly obtained by the State Legislature before applying the provisions of this Act. In this connection he has invited our attention to the provisions of Art. 31 A of the Constitution, the relevant portion of which is re-produced below : "31-A (1) Notwithstanding anything contained in Art. 13. no law providing for - (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Art. 14, Art. 19 or Art. 31 : Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received bis assent". The contention of Mr. Gupta is that the proceedings in respect of consolidation of the petitioners' holdings had been carried out before the Validating Act was passed, with the result that the petitioners' rights in respect of the holdings which they owned, were extinguished or modified before Chapters III and IV of the Consolidation Act were enforced and thus the petitioners were deprived of their property without authority of law, in contravention of Art. 31 (1) of the Constitution which says that "no person shall be deprived of his property save by authority of law". He has also argued that the action of the State Government and its officers in this behalf amounted to infringement of the petitioners' rights guaranteed under Art. 19 (l) (f) of the Constitution to acquire or hold or dispose of property. He has, therefore, urged that the Validating Act by which the State Legislature wanted to validate the operations for the consolidation of holdings could be effective received the assent of the President. Admittedly, the Validating Act has not received the assent of the President but had received the assent of the Governor of Rajasthan only. Consequently, it was submitted that the Validating Act was not passed in accordance with the provisions of Art. 31 A of the Constitution and was thus not a valid piece of legislation. It was, therefore, urged that the Validating Act must be struck down and the proceedings for conso-lidation taken by the State Government and its officers must be declared null and void. On the other hand the learned Additional Advocate-General has contended in the first instance that it was not necessary for the State Legislature even to have obtained the assent of the President to the Consolidation Act itself and in any case it was not necessary to obtain the assent of the President to the Validating Act, in asmuch as direction contained in S. 1 (3) of the Consolidation Act to enforce the provisions of the Chapters III and IV of the Consolidation Act was not in the nature of a delegated legislation. The law which sought to take away or abridge the rights of the petitioners in respect of their holdings was the Consolidation Act which had received the assent of the President. According to the learned Additional Advo-cate-General, the duty of enforcing the various provisions of the Consolidation Act was only a matter of implementing the mandate given in the Consolidation Act and therefore the Validating Act by which provisions of Chapters III and IV of the Consolidation Act were retrospectively enforced and the operations of consolidation were validated, was not unconstitutional and void. For a correct appraisal of the arguments advanced on behalf of the petitioners it is necessary to examine the relevant provisions of the Consolidation Act as well as the Validating Act. Sec. 1 (3) of the Consolidation Act runs as follows : "chapters I and V shall come into force at once. _ The remaining Chapters of the Act shall come into force in such area and from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf, and different dates may be appointed for the coming into force of different provisions of the said Chapters. " Chapter I of this Act deals with "short Title, Extent and Commencement, and Definitions". Chapter II deals with "determination of the Standard Areas and Treatment of Fragments". Chapter III deals with "consolidation of Holdings" It would be useful to reproduce some of the relevant sections contained in Chapter III - "14 Declaration to make scheme for consolidation of holdings.- (1) with the object of consolidating holdings in any area for the purpose of better cultivation of lands therein, the State Government may, of its own motion or on application made in this behalf, declare, by notification in the Official Gazette and by publication in the prescribed manner, in the area concerned, its intention to make a scheme for the consolidation of holdings in such area. (2) On such publication in the area concerned, the State Government may appoint a consolidation officer, who shall, after consulting in the prescribed manner the land holders and tenants in such area, prepare a scheme for the consolidation of holdings in such area or any part there of: Provided that if the land owner making the application under sub-section (1) submit a scheme of consolidation of holdings mutually agreed to the consolidation officer shall, in the manner prescribed, examine it and if necessary modify it. 14a. Effect of declaration.- fl) Upon the publication of the declaration under sec. 14, the area concerned shall be deemed to be under consolidation operations from the date of such publication. (2) Where any area is under consolidation operations, the duty of preparing and maintaining the map, the field-book and the annual registers under chapter VII of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956), shall stand transferred to the Consolidation Officer. 15. Scheme to provide for compensation.- (1) The scheme prepared -by the Consolidation Officer shall provide for the payment of compensation to any person who is allotted a holding which is of less market value than his original holding and for the recovery of compensation from any person who is allotted a holding which is of greater market value than his original holding. (2) The amount of compensation shall be assessed by the consolidation officer, so far as practicable, in accordance with the provisions of the Rajasthan Land Acquisition Act, 1953. 16. Khatedari tenancies.- (1) The scheme prepared by the consolidation officer may provide for the distribution of land held in khatedari rights between the Khatedar tenants and the person from whom they hold (called the land-holder) in such proportion as may be agreed upon between the parties. (2) When the scheme is finally sanctioned. under sec. 20, then, notwithstanding anything to the contrary contained in any law for the time being in force, Khatedar rights in the land allotted to the land holder shall be deemed to be extinguished and - (i) in places where full proprietory rights in lard exist, the land so allotted to the Khatedar tenant and the land-holder shall be held by each of them respectively in such right, and (ii) Where such rights do not exist, compensation shall be payable for the extension of Khatedari right, if any, in the portion of the land allotted to the land-holder at the rate of fifteen times the annual rent payable in respect thereof. 17. Amalgamation of public roads, etc. within scheme for consolidation of holdings.- X X X X 18. Lands reserved for common purposes.- x x x x 19. Publication of draft schme.- (1) When the draft scheme of consolidation is ready for publication, the Consolidation Officer shall publish it in the prescribed manner in the area concerned. Any person likely to be affected by such scheme shall, either individually or collectively within forty five days of the date of such publication, communicate in writing to the Consolidation Officer any objections relating to the scheme. The Consolidation Officer shall, a ter considering the objections, if any received, submit the scheme with such amendments, as he considers to be necessary, together with his remarks on the objections to the Settlement Officer (Consolidation ). (2) The Consolidation Officer shall also publish in the prescribed manner the scheme as amended by him. 20. Confirmation of Scheme - (1) The state Government may, by notification in the Official Gazette, appoint one or more persons to be Settlement Officers (Consolidation) and, by like notification, specify the area in which each such officer shall have jurisdiction. The Consolidation the Settlement Officer (Consolidation) shall be subordinate to him subject to any conditions which may be prescribed. (2) If no objections are received to the draft scheme published under sub-sec. (1), or within sixty. days of its publication to the amended draft scheme published under sub-sec. (2) of sec. 19. as the case may be, the Settlement Officer. (Consolidation) shall confirm the scheme. (3) If any objections are received to the amended draft scheme published under sub-sec. (2) of sec. 19, the Settlement Officer (Consolidation) shall, taking the objections into consideration, either confirm the scheme with or without modifications or refuse to confirm it. In case of such refusal, the Settlement Officer (Consolidation) shall return the draft scheme to the Consolidation Officer for reconsideration and resubmission with such directions as may be necessary. (4) Upon the confirmation of the scheme under sub-sec. (2) or sub-sec (3) the scheme as confirmed shall be published in the prescribed manner in the area concerned. 21. Repartition.- (1) The consolidation Officer shall, after consulting the land-holders and tenants in the area concerned, cany out re-partion of holdings in accordance with the scheme of consolidation of holdings confirmed under sec. 20, and the boundaries of the holdings as demorcated shall be shown on the map which shall be published in the prescribed manner in the area concerned. (2) Any person agrieved by the re partition may file a written objection within 30 days of such publication before the consolidation officer. (3) The consolidation officer shall, if he does not reject the objection, give a public notice thereof in the manner prescribed for the giving of a public notice under sub-sec. (2) of sec. 5, inviting all persons likely to be affected thereby appear before him and show cause against the objection on a date appointed for the purpose. (4) On the date so appointed the Consoli-tion Officer, after hearing all such persons as may appear in response of the notice given under sub-sec. (3), pass such order on the objection as he considers proper. (5) Any person aggrieved by the order of the Consolidation Officer under sub-sec. (4) may within 30 days of the passing thereof, file an appeal before the Settlement Officer (Consolidation) "who shall, after hearing the appellant if present, pass such order thereon as he considers proper: Provided that the order appealed from shall not be varied or reversed without affording the persons likely to be affected by such variations or reversal an opportunity of being heard. " Chapter IV contains "supplemental Provisions". Sec. 35 under this Chapter bars the jurisdiction of civil court to entertain any suit in respect of any matter which the State Government or any officer is, by this Act, empowered to determine, decide or dispose of. Sec. 36 provides that no appeal or revision shall lie from any order passed under this Act, except as provided in the Act. Sec. 37 confers revisional power on the State Government for the purpose of satisfying itself as to the legality or propriety of any order passed by an officer under this Act, and to pass such orders in reference thereto as it thinks fit. Sec. 38 confers power on the Consolidational Officer or any person acting under his orders to enter upon land for the purpose of survey and demarcation. Sec. 39 prescribe penalty for destiuc-tion, injury or removal of survey marks. Sec. 41 gives authority to a consolidation Officer or a Settlement Officer (Consolidation) to summon any person whose atten-dence he may consider necessary for the purpose of any business before him as a consolidation Officer or a Settlement Officer (Consolidation ). Thus, from the above provisions of the Act it would be clear that no proceedings for consolidation of holdings can be undertaken unless Chapters III and IV are enforced. It is the admitted case of the parties that State Government had not issued-any notification enforcing Chapters III and IV of the Act and operations for consolidation of the petitioner's holdings had been undertaken and completed prior to the passing of the validating Act. At this stage it may be useful to refer to the relevant portion of the Rajasthan Holdings Consolidation Operation Validating Act, 1960 - "sec. 2. Validation of holdings Consolidation Operations.- Notwithstanding anything contained in the Rajasthan Holdings (Consolidation and Prevention of Fragmentation) Act, 1954 (Rajasthan Act 24 of 1954), Chapters III and IV of the said Act shall be deemed to have been brought into force in the areas specified in Column 1 of the Schedule respectively from the dates noted in column 2 thereof, and all operations for the consolidation of holdings undertaken in the said areas before the commencement of this Act shall be deemed to have been validly and properly undertaken not withstanding any defect or want of procedure, jurisdiction or authority. " The learned counsel for the petitioner submits that sec. 2 of the Validating Act virtually amended the provisions of the main Act, in asmuch as it sought to validate the action of the State Government and its officers undertaken at a time when the law authorising them to take these proceedings was not in force, and had further condoned any defect or want of procedure, jurisdiction or authority. Thus, it was by virtue of this validating act that the petitioners' rights in respect of the land which they held before consolidation were extinguished in violation of the provisions of Arts. 19 and 31 of the Constitution. In this connection Mr. Gupta has placed reliance on Jawaharmal vs. The State of Rajasthan (4) Srila Shri Subramania Desika Ganasambanda Pandarasannidi vs. State of Madras (2), Atarsingh vs. State (3), Messrs Bhatnagar & Co. , Ltd. vs. The Union of India (4), Venson Transports vs. State of Andhra Pradesh (5) and Kishensingh Son Gurditta vs. State of Punjab (6 ). The learned Additional Advocate General, to start with, contended that the tenancy rights of the petitioners in respect of the holdings which have been extinguished or modified during the operations of the consolidation do not fall within the ambit of the word "estate" used in Art. 31-A of the Constitution and in this connection he placed reliance on Ajabsingh vs. State of U. P. (7), but on his attention being drawn to the amended definition of the word "estate" in Art. 31-A (2) (a) (iii) of the Constitution, he rightly gave up this contention, in asmuch as the expression "estate" has been so defined as to include any land held or let for purpose of agriculture. The next contention raised by the learned Additional Advocate General is that the Validating Act cannot be characterised as a law which takes away or abridges any of the rights conferred by Art. 19 or Art. 31 of the Constitution. He has argued that it was the original Consolidation Act which sought to extinguish or abridge the rights of the tenants in respect of the agricultural lands held by them and since that Act had received the assent of the President, the proceedings for consolidation were valid. According to him the duty cast upon the State Government under sec. 1 (3) of the Consolidation Act to put into force the Chapters II, III, and IV of the Act in various areas of the State on different dates was only administrative in its Character and was not in the nature of a delegated legislation. In this connection he has placed reliance on the following passage from the judgment of Ranny J. of the Supreme Court of Ohio reproduced by their Lordships of the Supreme Court in : re Art. 143 (8) - "the true distinction therefore is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring an authority of discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. " Before deciding the main question whether the validating Act can be considered as valid piece of legislation even in the absence of the assent by the President it would be necessary to determine whether the function assigned to the State Government by sec. 1 (3) of the Act to appoint dates for enforcing certain Chapters of the Consolidation Act in different areas of the State is in the nature of a delegated legislation. If the answer to this question is in the affirmative then there is no escape from the conclusion that the Validating Act could become a valid law of the land only if it had received the assent of the President. In Atarsingh vs. State (3) it was observed : "that in laying down whether the delegation of the power to fix date of commencement of the Act amounts to a delegated legislative authorify,the courts of law must take a liberal view and should not ordinarily declare such a provision to be ultra vires. In case the Government does not within a reasonable period issue a notification with regard to the commencement of the Act the aggrieved parties have an alternative remedy. " In this case the facts were that sec. 1 (3) of the Arms Act, 1959 gave power to the Central Government to lay down the date of commencement of the Act. The contention of the petitioner was that sec. 1 (3) was unconstitutional as it amounted to delegated legislation but the learned Judge held that it was not unconstitutional. In Messers Bhatnagar & Co. Ltd. & Another vs. the Union of India (4) their Lordships of the Supreme Court were pleased to observe as follows : 'legislation which is conditional, properly so-called, must be distinguished from legislation which is delegated. Where the Legislature provides and lays down principles under lying principles under the provisions of a particular statute and also affords guidance for the implementation or enforcement of the said principles, it is open to the Legislature to leave the actual implementation or enforcement to it's chosen delegate. The time when the provision should be implemented the period during which it should be implemented or the place where it should be applied can in appropriate cases be validly left by the Legislature to its delegate. If the Court can find a reasonably clear statement of policy underlying the provisions of the Act either in the provisions of the Act or in the preamble, then any part of the Act cannot be attacked on the ground of delegated legislation by suggesting that questions of policy have been left to the delegate. " (The italic is ours.) In Jawaharmal vs. The State of Rajasthan (l) their Lordships were pleased to observe that : "the Legislature, no doubt, can validate an earlier Act which is invalid by reason of noncompliance with Art. 255 and such an Act may receive Act effective. The Legislature cannot, however, itself declare by a statutory provision that the failure to comply with Arr. 255 can be cured by its own enactment, even if the said enactment received the assent of the President, Even assent of the President cannot, by any legislative process, be deemed to have been given to an earlier Act at a time when in fact it was not so given. The clauses "notwithstanding the aforesaid defects" in the last para of S. 4 emphatically point to the fact that the Legislature thought that it could legislate retrospectively, and by such retrospective legislation, it could itself cure the infirmity in question. What has been overlooked by the Legislature is the fact that the infirmity in question can be cured only by obtaining the assent of the President and not by any Legislative fiat. Since the Legislature is incompetent to declare that the failure to comply with Art. 255 is of no consequence (he assent of the President to such declaration cannot also serve the purpose which a subsequent assent by him can do under Art. 255. " We may state atonce that no decided case having a direct bearing on the point has been placed before us. We. , therefore, do not think it necessary to refer to the other authorities cited at the Bar and would rest content by having referred to the relevant passages of the cases noted above. We are inclined to think that when it is provided by any Act of the Legislature that certain provisions of the Act may be entorced 'by the State Government in such area and from such date as it may, by notification, appoint in this behalf, it cannot be held that the State Government in such circumstances is acting only as an administrative authority. The only reasonable interpretation of such a provision in light of the observations of their Lordships of the Supreme Court is that the State Government is exercising the junctions assigned to it as a delegate of the Legislature. It is not the case of any of the parties that such a delegation is unconstitutional. Now, let us examine the impact of the Validating Act. it lays down that "notwithstanding anything contained in the Consolidation Act Chapter III and IV of the said Act shall be deemed to have come into force from a certain date retrospectively and further that all operations for the consolidation of holdings shall be deemed to have been validly and properly undertaken notwithstanding any defect or want of procedure, jurisdiction or authority. The question is whether the Validating Act is a law as contemplated by Art. 31 A of the Constitution by which the rights of the petitioners in respect of their agricultural holdings conferred by Art. 19 or Art. 31 of the Constitution have been infringed. It is clear that at the time when the consolidation operations were undertaken and the rights of the petitioners in respect of their holdings were extinguished or modified by the State Government, Chapters III and IV had not been applied and thus there was no law in force authorising it to do so, and it cannot be controverted that the fundamental right's the petitioners guaranteed under Art. 19 or Art. 31 of the Constitution were, infringed by the operation of consolidation. The Validating Act seeks to legalise the State's action in respect of infringement of fundamental rights of the petitioners and thus it would not be incorrect to say that the Validating Act is a 'law' as contemplated by Art. 31 A of the Constitution and since the assent of the President was not obtained before applying this law it must be struck down as ultra vires. Virtually, it amounts to amending the original Consolidation Act in asmuch as it provides that all operations for the consolidation, even if they have been taken in defiance of the procedure prescribed under the Consolidation Act or even if there had been want of jurisdiction or authority in any officer responsible for carrying out the operations for consolidation, shall be valid and therefore to such a Validating Act it would be quite proper to apply the same principles as are applicable to Amending Acts. There is no gainsaying the fact that the Consolidation Act could have been validly amended only after obtaining the assent of the President. Our conclusion therefore is that the Validating Act having not been assented to by the President is bad and must be struck down as an invalid piece of legislation.
(3.) THERE is thus no escape from the conclusion that all the proceedings by the State Government and its officers in connection with consolidation of holdings of the petitioners amounted to an infringement of their fundamental rights to hold the same since this infringement took place at a time when there was no valid law to authorise the same the operations for consolidation undertaken by the State Government through its officers must also be quashed. Our decision on the first point whereby we have held the validating Act to be ultra vires is sufficeint to dispose of these writ petitions, yet we think it necessary to deal with some of the other objections raised by the learned counsel for the petitioners with respect to the proceedings undertaken by the State Government under the Consolidation Act. In the first instance, it is urged, in the case of Onkarsing that the notification dated 20th October, 1959 under sec. 14 was published by the Director of Consolidation declaring his intention to make a scheme for consolidation of holdings in his village suo-moto and not on any application made by any landowner in this behalf. Sec. 14 (2) provides that on such application the Consolidation Officer who has been so appointed shall, after consulting in the prescribed manner the land-holders and tenants in such area, prepare a scheme for the consolidation of holdings in such area provided, that, if the land owner making the application submits a scheme of consolidation of holdings mutually agreed to the Consolidation Officer shall, in the prescribed manner, examine it and if necessary modify it. It it urged that this was not a case of an application having been made by a land-holder and therefore it was not open to the Consolidation Officer to act on a mutually agreed scheme and to follow the procedure prescribed under Rule 7 of the Rules made in exercise of the powers under sec. 44 of the Act. Rule 7 runs as under : "examination of scheme submitted by land holders - Where the land-holders have applied for consolidation of their holdings and have themselves submitted a scheme therefor mutually agreed to, the Consolidation Officer shall examine the scheme in order to ascertain whether - (a) classification and valuation of lands and assessment of compensation payable for trees wells, buddings etc. have been made correctly; (b) due provision has been made with regard to the holdings of each land-holder for transfer of his encumbrances and sub-tenants having tenure rights on their sub-tenancy ; (c) re-partition of lands has been made according to an equitable valuation of land and whether lands of an as equal a value as possible have been proposed to be given in exchange for the lands taken away from each land-holder : and (d) the interest of all miners, widows and absentees have been duly safeguard and (e) in the case of unallotted evacuee land, the original classification has, as far as possible been taken been into consideration and separate blocks of such land have been made as specified in sub-rule (2) of rule 5. (2) After examining the scheme under sub-rule (1) the Consolidation Officer shall get prepared a brief statement of the main features of the scheme and maps showing separately the disposal of lands under the existing and the proposed holdings of each land-holder and shall get them published in the village and call upon all-holders to submit their objections thereto if any, within one month from the dale of publi cation thereof. (2a) A copy of the statement prepared u/sub rule (2) shall be sent to the Regional Settle ment Commissioner-cun-Custodian of Evacuee Property for his information and for preferring such objections as he may consider necessary, within a period of one month of the receipt by him of such copy. (3) If no objections are received and the Consolidation Officer finds the scheme to be in order under sub-rule (l) he shall sanction the schemes and order mutation of lands and preparation of new records of rights accordingly. (4) Where any land-holder or land-holders submit objections to the scheme published under sub-rule (2) or the Regional Settlement Commissioner-cum-Custodian of Evacuee Property objects thereto "under sub-rule (2a) the Consolidation Officer shall visit the village, after giving reasonable notice of his visit to the land-holders, and hold a meeting of all the land-holders, and the representatives of the Regional Settlement Commissioner-cum-Custodian of Evacuee pro perty, if nominated, hear (he objections received and, after such local inspection of fields as he may deem necessary,re-examine the scheme in the light of the objections heard, and may modify it as he may deem proper. (5) The modified scheme shall be read over to the land-holders present and a copy of the same shall be sent to the Regional Settlement Commissioner-cum-Custodian of Evauee Proper ty. If 75% of them agree to it he shall sanction it forthwith otherwise he small submit the modifi ed scheme with his own remarks to the Settle ment Officer (Consolidation ). The contention of the petitioner is that it was not open to the Government to follow the procedure prescribed by Rule 7 but it ought to have observed the procedure prescribed in sec. 19, 20, 21 of the Act. The respondent Nos. 1 to 4 in their replies to the writ applications have stated that while the Consolidation Officer taking steps for preparation of the scheme, the land-owners approached him and submitted a mutually agreed scheme in the meantime, and consequently the proceedings were continued on the footing of that agreed scheme. It has been further stated that the petitioners and other land owners had taken part in the deliberations relating to the scheme and after the finalisation of the same they had also claimed re-partition and had actually filed objections which had been dismissed right upto the Director of Consolidation, revision since they were devoid of merit. Consequently, it is urged that it is not open to the petitioners to challenge the consolidation proceedings. We, may, state that we are not prepared to go into the merits of the objections raised by] the petitioners in the process of consolidation and prevention of fragmentation. It is for the authorities created under the statute itself to decide whether a particular land should not have been allotted to a particular tenant. We would not be justified in interfering with discretionary orders of the departmental authorities while sitting in our extraordinary jurisdiction. However, we cannot fail to observe that the] departmental authorities have not followed the procedure prescribed under the Consolitation Act while carrying out the operations for the consolidation of holdings. A perusal of sec. 14 of the Consolidation Act would show that the State Government may either of its own or on an application made in this behalf declare by notification its intention to make a scheme for the consolidation of holdings in any area. Since the notification has been issued in these cases by the officer suo-moto, it was his duty to consult the land-holders and tenants in such area in the prescribed manner and prepare a scheme for the consolidation of holdings in such area. According to proviso to sub-sec. (2) of sec. 14 it is clear that if the land owner making the application under sub-sec. (1) submits a scheme of consolidation of holdings mutually agreed to the Consolidation Officer shall in the manner prescribed examine it and if necessary modify it. From Rule 7 which we have extracted above it would be clear that a different procedure has been prescribed for finalising a mutually agreed scheme. In case it has been submitted as a mutually agreed scheme and if 75 percent of the land-owners or the tenants agree to such a scheme the Consolidation Officer has been authorised to sanction the scheme forthwith. There is no doubt that the stand of the Government is that in the present case 73 percent of the land holders had agreed to the mutually agreed scheme and the petitioner was also a consenting party to it. But from the copies of the proceedings which have been placed before us on record it appears that the scheme was not sanctioned by following the procedure prescribed under Rule 7 alone but the procedure prescribed for the scheme which is prepared by the Consolidation Officer has also been followed. For instance, sec. 19 of the Act provides that when the draft scheme of Consolidation is ready for publication the Consolidation Officer shall publish it in the prescribed manner in the area concerned and any person likely to be affected by such scheme may within 45 days of the date of such publication communicate in writing to the Consolidation Officer any objections relating to the scheme and the Consolication Officer shall, after considering the objections, if any received submit the scheme with such amendments as he considers to be necessary, together with his remarks on the objections to the Settlement Officer (Consolidation ). Sec. 20 provides how the draft scheme is to be confirmed by the Settlement Officer. In the case of a mutually agreed scheme, however such a procedure need not be followed and the Consolidation Officer has himself been authorised to sanction it if 75 percent of the land holders agree to it. In the present case, however, it is noteworthy that though the draft scheme was published and objections were also invited no steps were taken for confirmation of the scheme by the Settlement Officer. It was urged by the learned Additional Advocate General that it was not at all necessary to get the scheme confirmed as it was a mutually agreed scheme. We, are however unable to accede to this submission and are of view that once the Government decided to issue a notification of its own motion under sec. 14 (1) of the Consolidation Act then it should have followed the procee-dure prescribed under sec. 19 and 20 of the Act and could not short circuit it by resorting to the procedure prescribed under Rule 7 of the Rules. ;


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