V.K.JHANJI, J. - (1.) IN this writ petition filed under Article 226 of the Constitution of India, challenge is to order dated 10.9.1996, Annexure P-1, passed by the Director, Consolidation of Holdings, Punjab, whereby land in dispute has been ordered to be partitioned among various land owners.
(2.) IN brief, the facts are that Nachhattar Singh and other respondents alleging themselves to be right-holders of the village, filed petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short the 1948 Act) before the Director Consolidation challenging the scheme of repartition on the ground that the land in dispute before consolidation was described as Hasab Rasad Zar Khewat and the right-holders were in possession. They further submitted that the land does not fall within the definition of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 (in short the 1961 Act). They further stated that after utilisation of the land for common purposes, remaining land should have been distributed among the rights-holder according to their respective share but the Consolidation Authorities while preparing the scheme and implementing the partition, committed an error in not doing so. They further contended that mutation No. 398 transferring Shamilat Deh Hasab Rasad Zar Khewat in favour of Panchayat was totally erroneous and was not binding on the rights of Khewatdars. They thus, asked the Director Consolidation that land of Hasab Rasad Zar Khewat may be ordered to be distributed amongst the share-holders. Gram Panchayat contested the petition and contended that the land in dispute is Shamilat and is covered under Section 2(g) of the 1961 Act. Gram Panchayat further submitted that it cannot be divested of the land which had vested in it and that too after 40 years of completion of consolidation proceedings. It further submitted that originally, the land was being managed by the Gram Panchayat for common use and after consolidation, land has been given on Chakota and the amount is being used for the benefit of village community. The Director Consolidation vide order dated 10.9.1996 (Annexure P-1) allowed the application under Section 42 of the 1948 Act and directed the Consolidation Officer (Tehsildar), Fatehgarh Sahib, to assess the requirement of the village for common purposes, as per provisions of law and distribute the remaining land among the right- holders, as per their share. It is this order which is being challenged in the present writ petition. I have heard the learned Counsel for the parties and perused the record. From a reading of order, Annexure P-1, I find that the question before Director Consolidation was whether the land in dispute was Shamilat Deh and as such, was owned by the Gram Panchayat or it was owned by the right-holders of the village. The Director Consolidation came to the conclusion that the land which was not being used for common purposes has to revert back to the right- holders. He thus, held that mutation in favour of Gram Panchayat had no legal value and mutation order was a non-est order. The finding of the Director that the land was not Shamilat Deh cannot be sustained because the Director had no jurisdiction to go into the question whether the land was Shamilat Deh or not. In this regard, reference may be made to the judgment of the Supreme Court in Gram Panchayat Village Sidh v. Additional Director, Consolidation of Holdings, Punjab and others, 1997(1) PLJ 313 : 1997(3) RCR(Civil) 491 (SC), which reads as under : "It is not disputed that consolidation proceedings were completed in the village in the year 1953-54. It is further not disputed that prior to consolidation proceedings, the entry regarding Khewat No. 78 measuring 1000 Bighas 16 Biswas was made in the Jamabandi as Shamilat Deh Hasab Rasad Raqba Khewat. It is also not disputed that after the consolidation, the entry in the revenue record was in similar terms. The Additional Director, Consolidation by the order dated May 1, 1990 changed the mutation entries in the revenue record and distributed part of the land amongst the right-holders. We are of the view that after the enforcement of the Punjab Village Common Lands (Regulation) Act, 1961, the question of ownership could only be decided by the Collector under Section 11 of the Act. Mr. Palli, learned Counsel for the right-holders has contended that the area which was bachat area was distributed amongst the right-holders. It is a question to be decided by the Collector. The right-holders may raise all the points, if they wish to, before the Collector. We, therefore, allow this appeal, set aside the order of the Additional Director dated May 1, 1990 and remand the case to the Collector, District Patiala to decide the case afresh in accordance with law, after hearing the parties. No order as to costs.
(3.) ALSO in Gram Panchayat Nurpur v. State of Punjab and others, 1997(1) PLJ 268 : 1997(3) RCR(Civil) 47 (SC), the Supreme Court held that the question whether land is Shamilat Deh or not can only be decided by Authorities under the 1961 Act. Following the two judgments of the Supreme Court, referred to above, I am of the view that order, Annexure P-1 passed by the Director Consolidation is not sustainable in law. Dispute whether the land in dispute was Shamilat Deh or not, could only be determined by the Authorities under the 1961 Act. Accordingly, order dated 10.9.1996 Annexure P-1, being without jurisdiction is quashed. Writ petition stands allowed accordingly. No costs. Petition allowed.;