CIVIL WRIT PETITION NO.4976 OF 1984 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 18, 2009 Gram Panchayat, Jaulian, Distt.Sangrur .....Petitioner VERSUS The Additional Director, Consolidation of Holdings, Punjab, Chandigarh and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. J. S. Bhandohal, Advocate, for the petitioner. Mr. P. C. Goyal, Addl. A.G., Punjab, for the State. Mr. Jatinder Singla, Advocate, for respondent Nos.31. **** RANJIT SINGH, J. (ORAL) This order will dispose of Civil Writ Petition Nos.4976 of 1984(Gram Panchayat, Jaulian, Distt.Sangrur Vs. The Additional Director, Consolidation of Holdings, Punjab, Chandigarh and others) and 5362 of 1984 (Gram Panchayat, Fatehgarh Bhadson, Distt.Sangrur Vs. The Additional Director, Consolidation of Holdings, Punjab, Chandigarh and others) The facts are being taken from Civil Writ Petition No.4976 of 1984. CIVIL WRIT PETITION NO.4976 OF 1984 :{ 2 }: Consolidation proceedings were commenced in the village Jaulian, after issuance of notification under Section 14(1) of the Consolidation of Holdings (Prevention of Fragmentation) Act, 1948 (for short, “Consolidation Act”). Draft scheme was published on 26.3.1954 and later on the same scheme was confirmed on 4.5.1954. The notification with regard to repartition operation under Section 21 of the Consolidation Act was published on 21.5.1954 and after finding that no objection petition was filed within the prescribed time, the Consolidation Officer confirmed the re-partition work in the village on 16.6.1954. In this manner, the entire consolidation operation finished in the year 1954. The scheme was prepared, published and confirmed in general gathering of the right holders of the village. It is stated that no one, out of the entire village amongst the right holders or proprietors, ever raised any objection or questioned the scheme during the last 30 years. One Inder Singh and some other persons filed a petition under Section 42 of the Consolidation Act. He pleaded that a cut of Rs.51/00 was imposed for meeting the demand of the village for facilities and common purposes. 158 bighas 16 biswas of land was set apart for charand and rest of the area was used for common purpose including service paths, roads, sath and other such like common facilities. Khewat No.45 was so created. The plea of the applicants (respondents in writ petition), was that after meeting the demand of common purposes, an area of 102 bighas 17 biswas was utilised and Khewat No.45 was created with 1/3rd share coming to Patti Ghula 4/15th to Patti Khushal Singh and 2/5th to Patti Riipa. The plea accordingly was that the area which was left as bachat area CIVIL WRIT PETITION NO.4976 OF 1984 :{ 3 }: after utilisation of the total area for common purposes has wrongly been entered in the name of Nagar Panchayat by an order of Tehsildar vide mutation No.332 dated 12.6.1953. The plea of the respondents was that Tehsildar was not competent to take away the bachat area belonging to the petitioner and the words “shamlat deh” mentioned wrongly by the consolidation authorities against bachat area were required to be deleted so that bachat area could be distributed amongst the right holders. While dealing with this prayer, Additional Director found as a matter of fact that total cut of Rs.51-10 annas was applied and Khewat No.45 was created for this pool of an area for common purposes. It is noticed that total area set apart was 272 bighas 6 biswas. Out of this area, 102 bighas 17 biswas was utilised for common purpose i.e. for roads, paths and other facilities. This left 169 bighas 9 biswas of land. While creating Khewat No.45 in the Khatauni Paimaish, an error was committed by the consolidation staff in entering the total area of the common pool as shamlat deh. This error, as noticed by the Additional Director was in Khatauni Paimaish. The Additional Director, Consolidation, observed that this was patently wrong and illegal. The plea before the Director was that this land could not have been created as shamlat deh and atleast the area of 169 bighas 9 biswas, which remained after utilising the total area for common purposes, would legally belong to Jumla Mushtarka Malkan Hasab Rasad Raqba Khewat, which should have been kept as a joint holding as per their shares contributed by them to the common pool. The plea further was that this land, which is left as a bachat, could be partitioned and distributed amongst the contributors. CIVIL WRIT PETITION NO.4976 OF 1984 :{ 4 }: Counsel for the Gram Panchayat, however, pleaded that the mutation in regard to the land has already been sanctioned and the land has been given to the Nagar Panchayat as a shamlat deh. Gram Panchayat accordingly opposed the prayer for partitioning this land. This plea was not accepted by the Additional Director, Consolidation. He also found that if this area had not been described as shamlat deh by the consolidation authorities, then it would have obviously remained as holdings in the name of Jumla Mushtarka Malkan and as such, could not have been given to Nagar Panchayat. The plea raised by the respondents herein that Tehsildar had no authority to sanction the mutation under the Revenue Act was also found to be correct. It was noticed that such an authority would be with the Assistant Collector Second Grade or Ist Grade as the case may be. On these basis, the Additional Director held that the order transferring the joint holding in the name of Nagar Panchayat would be just error of mentioning it as shamlat deh by the consolidation authorities and subsequently mutation No.332 dated 12.6.1957 by Tehsildar, Bhawanigarh done on that basis are illegal orders and are liable to be quashed. He accordingly held that words “shamlat deh” mentioned in the Khatauni Paimaish stand deleted and instead the words “Jumla Mushtarka Malkan” shall stand inserted and thereafter ordered that mutation No.332 dated 12.6.1957 being nonest shall be ignored. He accordingly directed that necessary correction should be made by the Consolidation Officer in the revenue record accordingly and the new entry in the Khyana Malkiat of Bachat area shall stand as follows:- “1. Jumla Mushtarka Malkan Hassab Hissas Tafsil Zail. CIVIL WRIT PETITION NO.4976 OF 1984 :{ 5 }: i. Shamlat Patti Ghulla 1/3rd. ii. Shamlat Patti Khushal Singh 4/15th iii.Shamlat Patti Rupa 2/5th” The Additional Director also issued direction for distributing this bachat land measuring 169 bighas 9 biswas. The Additional Director also held that under the Government policy the maximum area that could be set apart for the Sath or grazing purpose of the village could not be more than two acres. Finding that an area of 2 bighas 5 biswas in the scheme has been set apart for the Sath i.e. grazing ground, he held that the area for charand could not be reserved. Accordingly, he observed that area for charand put at the maximum increase of 2 bighas 5 biswas to 9 bighas 12 biswas. He accordingly remanded the case to the Consolidation Officer to make necessary changes in the revenue record as ordered and also to partition 162 bighas 2 biswas of the area of charand amongst the right holders as per their share and the cut imposed on them. The scheme in the village was ordered to be amended to that an extent. The Panchayat is aggrieved against this order and has, thus, challenged the same. By virtue of Section 6 of the Punjab Act No.27 of 1960, amendment of the provisions was made in respect of area to be reserved for income of Gram Panchayat and the area so reserved prior to 1960 could not be taken away from the Khata of Gram Panchayat under any circumstances. Reference is made to the provisions of Section 23-A to say that as soon as a scheme comes into force, the management and control of all lands assigned or reserved for common purposes of the village under Section 18 shall CIVIL WRIT PETITION NO.4976 OF 1984 :{ 6 }: vest in the Panchayat of that village. The Panchayat is also held entitled to apportion the income accruing therefrom for the benefit of village community. It is then averred that prior to consolidation, there was Khewat No.41, measuring an area of 604 bighas and 3 biswas, which consisted of 532 bighas 10 biswas Banjar Qadim, 71 bighas- 13 biswas Gair Mumkin land. The entries in the jamabandi for the year 2002-03 B.K corresponding to 1945-46 A.D are corroborating this fact, according to the petitioner-Panchayat. This very area is entered in the ownership column No.4 in the jamabandi in the name of shamlat deh. It is, thus, pleaded that this entire land belongs to proprietary body of the village and was used for common purpose. This entry is made on the basis of consolidation operation. Copies of the jamabandies have been attached. Counsel for the petitioner pleads that according to the confirmed Scheme under the Consolidation Act, area measuring 604 bighas 13 biswas in Khewat No.41 of shamlat Deh Hasab Hissas Tafsil Zail Shamlat Patti Ghula 1/3rd Shamlat Patti Khushal Singh, two shares and shamlat Patti Roopa, 3 shares both in 2/3rd share in consolidation were reserved and confirmed in the scheme under different items which also included Item No.7 reserving area measuring 158 bighas 16 biswas for charand. It is pleaded that this area reserved in the scheme can not be given to respondent Nos.3 to 32 but now after 30 years of the scheme, the same issue has been re-opened by respondent No.1, which, according to the petitioner, can not be done. It is further pleaded that there is no policy of the Government under which maximum area measuring 2 acres for grazing ground i.e. charand could be reserved as mentioned in the CIVIL WRIT PETITION NO.4976 OF 1984 :{ 7 }: impugned order, Annexure P-4. It is accordingly pleaded that order, Annexure P-4, is bad in law and liable to be quashed. Learned counsel for the petitioner, Gram Panchayat, would submit that the Additional Director, Consolidation, has failed to appreciate the facts in correct perspective. He would further submit that the Director would not have any jurisdiction to correct the revenue entries in regard to this land. The counsel further submits that this land, which was reserved for charand, was rightly described in the revenue record as shamlat deh and was being used for the common purposes. According to the counsel, this land could not have been, thus, described as a bachat land and ordered to be distributed amongst the share holders. On the other hand, learned counsel for the respondents would seriously contest the submissions made by learned counsel for the petitioner. He would submit that more than 2 acres of land could not have been reserved for charand and it was rightly held so by the Additional Director. Counsel would also submit that the Additional Director had rightly corrected the error, which had been made in the Khatauni Paimaish and as such, no case is made out for interfering in the impugned order. I have considered the rival submissions made before me by the learned counsel. To my mind, the Additional Director had found an error in Khatauni Paimaish, which was committed by the consolidation staff in entering the total area of the common pool as a shamlat deh. While ordering correction of this entry in Khatauni Paimaish, the Additional Director has also directed that the entries in this regard, as CIVIL WRIT PETITION NO.4976 OF 1984 :{ 8 }: made in the revenue record, be also corrected. The Additional Director may be competent to correct the error, which had come into Khatauni Paimaish. If the entry was wrongly made in Khatauni Paimaish by the consolidation staff showing the entire area to be common pool as a shamlat deh, this could be so corrected in Khatauni Paimaish. The Additional Director should have confined himself to direct correction only in Khatauni Paimaish and thereafter should have left the parties to have their remedy of getting the revenue record corrected on the basis of consolidation or otherwise. It will be for the parties to prove as to what would be the status of the land, which is shown reserved for charand. It would also have to be shown and proved before the competent authority that the land could be reserved for charand, and if so, to what extent. The Additional Director, in my view, has exceeded his jurisdiction in directing the correction of the entries in the revenue records. It was not for him to see if the entries in the revenue records were made on the basis of error in Khatauni Paimaish or not. He would only be competent to order correction of an entry in the Khatauni Paimaish, if there is one, and thereafter should have left the parties to have their further remedies by approaching the revenue authorities. Accordingly, the impugned order to an extent it has directed correction of Khatauni Paimaish on finding the error is sustained. The remaining part of the order whereby correction in the revenue record has been directed to be made is set-aside. The parties would be entitled to approach the competent revenue authorities whether the Tehsildar or Assistant Collector for getting correction, if any, to be made in the mutation entries. On the basis CIVIL WRIT PETITION NO.4976 OF 1984 :{ 9 }: thereof, the parties would be entitled to seek further remedy of partition, if otherwise permissible under law. The writ petitions are accordingly disposed of. May 18,2009 ( RANJIT SINGH ) khurmi JUDGE