- (1.) The short question that falls for determination in Civil Writ Nos. 1399 of 1965 and 3300 of 1969 is as to whether the Orders, Annexure 'H' dated 30.4.1964 passed by Assistant Director, Consolidation of Holdings, Rohtak, effecting changes in the scheme of consolidation, could be passed.
(2.) Before dealing with the question posed, at this stage a short history of these petitions may be noticed. In the first instance, Civil Writ No. 1399 of 1965 was filed, which came up before Tuli, J., who dismissed the same on 23.5.1969, without going into the merits of the case, on the ground that the petitioners having not challenged the orders passed subsequent to the impugned orders and having availed the chance before the authorities which passed the subsequent orders, are not entitled to agitate against the impugned orders in this Court. The petitioners challenged this judgment in L.P.A. No. 338 of 1969 which was allowed and the case remanded for decision on merits. In the meantime, in order not to take any chance, the petitioners had filed the Civil Writ No. 3300 of 1969 challenging therein apart from the impugned order, such other orders, as well, as had been passed subsequent thereto. This writ was also ordered to be disposed of, along with the previous writ, by the Single Judge. The facts alleged in the Civil Writ No. 1399 of 1965 have been mentioned by Tuli, J., in his judgment and these can be reproduced in his own language :- "The petitioners and respondents 6 to 10 are rightholders of village Jandwala Mira Sangla, Tehsil Fazilka, District Ferozepur. In that village consolidation proceedings were started in 1960 and a scheme was drafted by the Consolidation Officer, Fazilka, on August 27, 1961, which was later confirmed by the Settlement Officer. Para VI-B of this scheme provided that major portions of the rightholders would be calculated in accordance with their holdings in ordinary acres and fields separated by any path or channel would be deemed to be part of the same field. It was further provided that at the time of the allotment of Qurrahs the rightholders would be fitted on one side of the way, channel or canal as far as possible and in case their Qurrahs are separated by any way, channel or canal, it would be deemed to be one block. In the return which has been filed by respondents 1 to 5, this provision of the scheme has been admitted as correct. The Consolidation Officer, in accordance with the provisions of the scheme, announced the major portion of the rightholders under Section 19 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act). He did not include field No. 1175/891 in the first major portion of the petitioners on an assumption that it did not adjoin their first major portion. The petitioners preferred objections under Section 19(1) of the Act before the Settlement Officer who sent the same for report to the Consolidation Officer. The Consolidation Officer checked up the records again and made a report on October 13, 1961 to the effect that field No. 1175/891 adjoined field No. 1354/1178 which formed part of the first major portion of the petitioners though both these fields were separated by a canal. After receipt of this report, the Settlement Officer came to the village on October 20, 1961 and called a meeting of all the rightholders to decide objections under Section 19(1) of the Act. The objections of the petitioners were decided by him on that very day in which it was held that field No. 1175/891 adjoined the first major portion of the petitioners at field No. 1354/1178. The scheme was accordingly amended and field No. 1175/891 was included in the first major portion of the petitioners. Against this order, respondents 6 and 7, Jammu Ram and Pannu Ram, sons of Ladha Ram, filed an application under Section 42 of the Act on May 25, 1963, challenging the inclusion of field No. 1175/891 in the major portion of the petitioners. This application was in two parts, copies of which are Annexure 'C' to the writ petition and Annexure 'N' filed with the replication. This application was rejected by the Additional Director, Consolidation of Holdings, Punjab, Bhatinda, as time-barred. Respondents 6 and 7 did not take any further action in the matter by filing a writ petition in this Court with the result that the order became final. The repartition of holdings under Section 21(1) of the Act took place on March 24, 1962 and the petitioners were given their A-grade area at their first major portion. Respondent 9, Tehla Ram, filed objections under Section 21(2) of the Act challenging that the major portions of the petitioners and others had not been rightly formed and the repartition was defective. The Consolidation Officer dismissed these objections by order dated June 18, 1962, holding that the major portion of the petitioners had been rightly calculated and they had been correctly fitted on their own major portion of A-grade. A copy of this order is Annexure 'E' to the writ petition. Feeling aggrieved, respondent 9 filed an appeal against that order under Section 21(3) of the Act before the Settlement Officer, respondent 4, who dismissed the objections of respondent 9 qua the petitioners on April 5, 1963, on the ground that the petitioners had been rightly fitted because they had 60.11 per cent of the area at the place where they had been fitted as first major portion as against Tehla Ram who had 45.27 per cent and Jammu Ram 48.49 per cent. Tehla Ram, respondent 9 and Jammu Ram and Pannu Ram, respondents 6 and 7, filed appeals under Section 21(4) of the Act against the said order of the Settlement Officer which came up for hearing before the Assistant Director, Consolidation of Holdings, Rohtak, on April 30, 1964. These appeals were accepted and the case was remanded to the Settlement Officer with the direction that the rightholders should be fitted again in the light of the observations made by him. The Assistant Director had observed that the percentage of petitioners was 42.98 and not 60.11 because the land on the other side of the canal was not to be included in the land of the petitioners to determine their first major portion. He was of the opinion that field No. 1175/801 was separated from field No. 1354/1178 by a canal and for this reason field No. 1175/891 which was on other side of the canal could not be included in the holding of the petitioners in order to determine their first major portion. The petitioners then filed an application under Section 42 of the Act against the order of the Assistant Director which was dismissed by the Assistant Director, Consolidation of Holdings, respondent 2, on October 28, 1964. The petitioners then filed the present writ petition in this Court on April 30, 1965 which was admitted on May 27, 1965."
(3.) Mr. N.L. Dhingra, learned counsel for the petitioners, on the strength of decision of this Court reported in Mansa Ram v. State of Punjab and others, 1970 PunLJ 391 canvassed that the Assistant Director, Consolidation of Holdings had no jurisdiction, while exercising powers under Section 21(4) to amend the scheme, which could be done only in the exercise of powers under Section 42 of the Act.;