- (1.) By way of this order, we shall answer a reference made by a Hon'ble Division Bench. An extract from the reference reads as follows:- "1. Whether a Director Consolidation, exercising power under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 can decide whether land vests or does not vest in a Gram Panchayat? 2. If answer to the first question is in the negative, then whether an order passed by a Director Consolidation, determining ownership of a Gram Panchayat, affirmed by the High Court and the Supreme Court operates as res-judicata in a subsequent petition, filed under Section 11 of the Act? 3. Whether Section 13-B of the Act empowers the Collector, exercising jurisdiction under Section 11 of the Act, to disregard an order passed by the Director Consolidation, that has been affirmed by the High Court and the Hon'ble Supreme Court. 4. Whether a plea that the order passed by the Director Consolidation was obtained by fraud can be raised after the order has been affirmed by the High Court and the Hon'ble Supreme Court? In addition to the questions framed, ancillary issues relating to merger of orders passed by Director Consolidation, in orders passed by the High Court and the Hon'ble Supreme Court, the principles of primacy of judicial precedents, the question whether Consolidation authorities in the garb of making good deficiency of allotment to a landowner, can direct that such deficiency be made good from "Shamilat Deh" or "Jumla Mushtarka Malkan", the difference between "Jumla Mushtarka Malkan" and "Bachat Land", the nature and the manner of vesting of "Jumla Mushtarka Malkan" in a Gram Panchayat and proprietors and other questions of general importance arise for consideration. During the course of arguments, certain other questions both significant and incidental arose, namely:- the nature of "Shamilat Deh", "Jumla Mushtarka Malkan" and the forum to decide disputes regarding rights in "Jumla Mushtarka Malkan" etc. also came up for consideration."
(2.) Before we proceed to answer these questions, it would be appropriate to narrate the facts.
(3.) The land, in dispute, was admittedly described, in the relevant revenue record as "Shamilat Deh Hasab Rasad Malguzari", before consolidation and during consolidation was assigned to the Gram Panchayat. After three decades or more, the petitioners (land owners/proprietors), filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948(hereinafter referred to as 'the Consolidation Act'), before the Additional Director Consolidation, Punjab, praying that as the land vests in proprietors, it should be partitioned amongst them. The Gram Panchayat was arrayed as respondent no.3. Vide order dated 03.09.1996, the petition was allowed by holding that the land does not vest in the Gram Panchayat and the land was or deemed to be partitioned amongst right holders.;