CWP No.14751 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** Date of decision : 12.5.2011 1. CWP No.14751 of 1990 Gram Panchayat, Chainpur .........Appellant Vs. State of Punjab and others .......Respondents CORAM : HON'BLE MR. JUSTICE K.KANNAN Present:- Mr.Viney Saini, Advocate, for Mr.G.S.Nagra, Advocate, for the petitioners Mr.K.S.Sivia, DAG, Punjab Mr.A.P.Kaushal, Advocate, for respondents No.2 to 9 2. CWP No.16033 of 1990 Swaran Singh and others ................petitioners Vs. State of Punjab and others ...............Respondents Present:- Mr.Viney Saini, Advocate, for Mr.G.S.Nagra, Advocate, for the petitioners Mr.K.S.Sivia, DAG, Punjab None for other respondents CWP No.14751 of 1990 -2- 3. CWP No.8161 of 1991 Gram Panchayat, Jatiwal ................petitioner Vs. State of Punjab and others ...............Respondents Present:- Mr.C.M.Chopra, Advocate, for the petitioner Mr.K.S.Sivia, DAG, Punjab None for other respondents --- 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? --- K.KANNAN, J (ORAL) :- 1. All these three writ petitions contain the challenge to orders passed under Section 42 of the East Punjab holdings (Consolidation & Prevention of Fragmentation) Act, 1948. The applicants were persons, who were owners of patties on whose holdings cuts were imposed to make way for common lands for the benefit of the villagers. This came to be done inevitably through orders of Assessment Officer and schemes had also been made before coming into force of the Punjab Village Common Lands (Regulation) Act, 1961. The objections came through some of the patti holders right contending that the cuts must have been imposed CWP No.14751 of 1990 -3- against all right holders in village and not merely against the patti right holders. 2. In CWP No.16033 of 1990 it appears an attempt was made by two of them in the year 1962 under Section 42 of the Act of 1948 before the Director of Consolidation. The petition was dismissed when the Additional Director observed that once the scheme is confirmed before coming into force the Punjab Village Common Lands (Regulation) Act, 1961, the question of reopening the issue by the Settlement Officer would not arise. This issue was raised again by some of the right holders in the year 1990 and an order was passed on consent that matter would be remanded to the Consolidation Officer to make good the deficiency of the petitioner's imposing standard deduction as calculated on all the right holders of the village proportionate to the holdings, provided, however, the interest of the villagers would not in any way suffer. This order is the subject to challenge in CWP No.16033 of 1990. 3. The learned counsel appearing for the Village Panchayats would state that once the scheme had been finalised, an application 30 years later cannot be entertained. Once, again with the coming into force of the Village Common Lands (Regulation) Act, 1961, the property had come under the control of the village Panchayat for the common benefit of all the villagers and if there existed a dispute on title, it should be done under Section 11 under the Village Common Lands (Regulation) Act, 1961 and cannot be reopened through an CWP No.14751 of 1990 -4- application under Section 42 of the Consolidation Act. The learned counsel relied on the judgment in 'Gram Panchayat, Kakran V. Additional Director of Consolidation, 1997 (2) PL J 375' to say that although there is no prescription of period of limitation for applicability of Section 42, such an application could not be filed after 40 years after a scheme was published. On the issue of lack of power to the Director, after coming into force of the Act of 1961, in Gram Panchaya Village Sidh v. Additional Director, Consolidation of Holdings, Punjab, 1997 (1) PLJ 313' the Hon'ble Supreme Court affirmed that the issue of title cannot be raised before the Director, Settlement. 4. Responding to these contentions, learned counsel appearing for the private respondents contends that the order had been passed on with consent by the Director, settlement and it cannot be challenged by the Panchayat in the writ petition. The order would not cause prejudice to the villagers, for the impugned order itself directs that the matter shall be considered by the Settlelment Officer, keeping in mind the fact that the interests of the villagers shall not in any way be affected. 5. The issue in the writ petitions is the competence of the Director, Settlement to pass the order that he did under Section 42. Parties, by consent, cannot invest a right in an officer which he did not possess. The question that must have been directed to the Director Settlement before he passed the order was whether he was CWP No.14751 of 1990 -5- justified in reopening a scheme which has been settled before coming into force of the Village Common Lands (Regulation) Act, 1961. If in the manner of development of common lands, cuts have been imposed only against patti rights holders, he could not override a scheme under the Consolidation Act. A scheme goes through several exercises before it is published. It will be no argument for any person to contend that he has ignorant of the legal provisions or he did not know that he could object to the settlement of the scheme. I will draw the law upon the point from the decision in Gram Panchayat, Kakran case (supra) that a scheme after its finalisation cannot be reopened after a considerable delay. In this case, it just not merely a delay but on the other hand, there has been an instance of some of the patti rights holders approaching a Director for a similar relief two years after the finalisation of the scheme and the Director refused to interfere. There must be curtains down sometime to allow for the state of things to exist without periodical dents at the instance of vested interests. The patti rights holders had surely an axe to grind. They were interested in securing to themselves return of some excess land if the cuts have been imposed on all the right holders in the village. It would literally create a new situation of re-writing the entire scheme for there is no guarantee even after such an exercise undertaking, there could be still persons other than the persons before this Court who could have similar objections that they were not heard. An official CWP No.14751 of 1990 -6- act done under the provisions of the Act after due publicity and when a scheme was finalised, cannot be allowed to be literally stultified in the manner sought to be done over a period of time. It is just not law but even inexigency demands that matters which are finalised on the basis of which schemes are framed are put at rest. The order passed by the Consolidation Officer in CWP No.16033 of 1990 is quashed and the applications filed at the instance of private respondents under Section 42 are dismissed. The two other petitioners in CWP No.8161 of 1991 and CWP No.14751 of 1990 raises the same controversy. The applications are also dismissed and the writ petitions filed at the instance of Panchayats are allowed. 6. Accordingly, all three writ petitions are allowed. (K.KANNAN) JUDGE 12.5.2011 akm