IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA Nos. 22 & 35 of 2004 Judgment reserved on: 28.5.2008 Date of Decision: July 29, 2008 ________________________________________________________________ 1. LPA No. 22 of 2004. Daler Chand & anr … Appellants Versus State of H.P & ors. … Respondents. _________________________________________________________________ 2. LPA No. 35 of 2004. Duni Chand & anr. ..Appellants Versus. State of H.P. & ors. ..Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting? Yes For the Appellant(s) : Shri G.D.Verma, Sr. Advocate with Shri Romesh Verma, Advocate. For the Respondent(s) : Shri R.M.Bisht, Deputy Advocate General, for respondents 1 &2. Shri Ajay Sharma, Advocate, for Respondent No.3. ________________________________________________________________ Deepak Gupta, J. These two letters patent appeals are directed against the judgment of a learned Single Judge of this Court - 2 - rendered in CWP No. 164/94, whereby the learned Single Judge has allowed the writ petition and set aside the notification dated 18/27.11.1998 whereby consolidation proceedings were cancelled. Briefly stated the facts of the case are that the State of H.P. issued notification under Section 14 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (hereinafter referred to as the Act) declaring that the scheme of consolidation is required to be prepared in respect of the land in Mauja Panhar, Tehsil & District Hamirpur, HP. This notification was issued in the year 1983 and consolidation work was started. The scheme of consolidation was prepared on 9.2.1984 and according to the private respondents, the possession of the new holdings was also given to the respective parties. On 18/27.11.1998, a notification under Section 16 was issued canceling the declaration under Section 14(1) and therefore, according to the State the area ceased to be under consolidation operations. Respondent No.4 Paras Ram filed CWP No. 164 of 1999. He alleged that after the consolidation scheme had been notified and sanctioned, the possession of new holdings in accordance with the scheme was also given to - 3 - the villagers. He alleged that thereafter the villagers alienated the property by various means and developed the lands granted to them in consolidation operations and also constructed their houses thereupon. Paras Ram also alleged that he came to know that the State Government had notified cancellation of the consolidation operations without giving any opportunity of hearing to the affected parties. He alleged that Daler Chand, Krishan Chand etc., tried to interfere in his possession in the land allotted to him in consolidation operations. When the petitioner Paras Ram asked these persons not to interfere in his land since the same had been allotted to him in consolidation proceedings, he was informed that the consolidation operations in the village had been cancelled. He then made inquiries from the office of the Deputy Commissioner, Hamirpur and was informed that the impugned notification had been issued canceling the consolidation operations. The petitioner challenged this notification on various grounds by filing the writ petition. The State in its reply took the plea that the notification had been issued under Section 16 of the Act in the public interest. According to the averments made in the reply by the State, the land owners and the villagers had submitted a - 4 - representation to the State of H.P. complaining that the consolidation work had not been properly carried out and therefore the State decided to issue the impugned notification. The learned Single Judge after going through the provisions of the Act came to the conclusion that the State Government has the power to cancel a declaration made under Section 14 but held that in the present case the consolidation proceedings had been completed under Section 30 of the Act. The learned Single Judge held that all rights, title and interest in the holdings of the tenure holders had come to an end and he therefore, came to the conclusion that the notification was illegal and against the provisions of the Act and set aside the same. Hence these appeals. These two appeals have been filed by Daler Chand and Duni Chand. They were not parties in the writ petition. One of the main grievances is that vide the impugned judgment certain issues have been decided by which they are adversely affected and therefore no order could have been passed in their absence. Another ground taken is that the State has the power under Section 16 to cancel the consolidation proceedings at any time. It was also alleged - 5 - that the petitioner Paras Ram had withheld certain facts from this Court especially the fact that he had filed a Civil Suit No.111/93 in the Civil Court which was decided against him and in that suit, it was held that Paras Ram was not in possession of the suit land. We have heard Shri G.D.Verma learned counsel for the appellants, Shri R.M.Bisht, learned Deputy Advocate General for the State- respondent and Shri Ajay Sharma learned counsel for respondent No. 4 Paras Ram. In our opinion, the respondent No.3 would have been well advised to implead Daler Chand etc. as parties in the writ petition. He should have also disclosed the factum of filing of the suit. However, instead of remanding the case on this short ground, we have heard the parties on merits of the case. We feel that this litigation which is going on for a long time should not be prolonged by remanding the matter back to the learned Single Judge. The Act in question has been enacted with a view to provide for consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings in the State of H.P. Section 14 of the Act empowers the State Government to issue a declaration to prepare a scheme for consolidation for any estate, group of estates or a sub - 6 - division of an estate. Under Section 15, from the date of declaration, the lands forming part of the area for which declaration has been issued shall be deemed to be under consolidation operations. Section 16 reads as follows:- “16. Cancellation of declaration under Section 14 – (1) The State Government may at any time cancel the declaration made under Section 14 in respect of the whole or any part of the area specified therein. (2) Where a declaration has been cancelled in respect of any area under sub-section (1) such area shall, with effect from the date of cancellation cease to be under consolidation operations.” Section 17 provides for revision and correction of records by the Consolidation Officer. After such revision the correct records have to be published under Section 18 and thereafter declaration regarding revision of records has to be issued under Section 19. Thereafter the statement of plots and tenure holders is prepared by the Assistant Consolidation Officer in terms of Section 20. This statement is required to be published in the village in the prescribed manner. Section 21 provides that any person within 30 days of the publication of the statement can file objections to the statement and the Assistant Consolidation Officer is required to submit his report in respect of these objections to the - 7 - Consolidation Officer who shall decide the same. Thereafer, consolidation scheme is prepared under Section 22. For the purpose of this case, we are not concerned with Sections 23 to 27, which relate to compensation, tenancies, partition, amalgamation of roads and land reserved for common purposes. The draft scheme is required to be published in terms of Section 28 of the Act. Objections can be filed to the said draft scheme and the Consolidation Officer is required to submit his comments/report, if any, to the Settlement Officer. Under Section 29 the Settlement Officer may either confirm the draft scheme with or without medifications or he can return the draft scheme to the Consolidation Officer for reconsideration and re-submission. Finally the scheme has to be confirmed. Thereafter under Section 30 repartition is carried out in accordance with the scheme of consolidation of holdings and fresh holdings allotted to the various land owners are demarcated and Shajra is prepared which is also required to be published. Any person aggrieved by this repartition can also file written objections. The Consolidation Officer is required to decide the same after hearing the parties under Section 30(2) of the Act, an appeal against the order of the Consolidation Officer lies to the Settlement Officer - 8 - (Consolidation). Further appeal from the order of the Settlement Officer (Consolidation) lies to the Director of Consolidation of Holdings. Under Section 54 of the Act the State Government exercises revisional powers and can satisfy itself about the legality or propriety of any order passed under the scheme. The proviso to this section clearly lays down that no such order shall be passed without giving the affected parties notice to appear and opportunity of being heard in the matter. Under Section 32, the persons allotted the lands in terms of the scheme of consolidation are entitled to take possession of the same and Section 34 provides that as soon as the persons entitled to possession of holdings under this Act, have entered into possession of holdings respectively allotted to them, the scheme shall be deemed to be have come into force. Under Section 35, the rights of the persons who have entered into possession of the lands allotted to them in the original land holdings stand extinguished. A perusal of the Act clearly shows that any person aggrieved by any actions taken under the Act has the right to object to the claim. The scheme of the Act makes provision for filing of objections at almost every stage. There - 9 - is a right to file appeals and revisions also. The learned Single Judge came to the conclusion that the entire exercise of consolidation operations was completed and settled by the consolidation authorities in the year 1985 and therefore, could not have been cancelled in the year 1998 especially when none of the so-called aggrieved persons had filed objections/appeals/revisions in terms of the Act. Though the State has not filed any appeal, the stand of the appellants as well as State is that a number of estate holders were not satisfied with the consolidation work and since this was against the public interest, it was decided to issue the notification in question. On the other hand, it has been urged that once the consolidation operations have come to an end, the scheme could not be cancelled. Section 16 on the face of it empowers the Government cancel the consolidation operations at any stage. It has been urged on behalf of Shri Paras Ram that this cancellation can only be ordered before revision in correction of records takes place under Section 17. We are unable to agree with this contention. The language of Section 16 is wide enough to include cancellation even after the work of consolidation has - 10 - started. However, we are also of the view that this power cannot be exercised after the consolidation work has been completed. The consolidation work comes to an end under Section 35. Thereafter, the State cannot set at naught the entire consolidation proceedings. Once the estate holders have entered into possession of the plots allotted to them in terms of Section 32, it would be highly improper for the State under any circumstances to cancel the consolidation operations and such a wide power cannot be read into Section 16 of the Act. A bare reading of Section 16 clearly indicates that the power to cancel can only be exercised when consolidation operations are still going on. Sub section (2) of Section 16 clearly provides that with effect from the date of cancellation, the area in respect of which notification of cancellation has been issued shall cease to be under consolidation operations. This clearly implies that the power under Section 16 to issue a cancellation notification can only be issued before consolidation operations are completed. In the present case, the consolidation operations were completed and in fact most of the land owners had been put in possession of the land allotted to them in these consolidation operations. Therefore, we are clearly of the - 11 - view that the learned Single Judge was right in holding that the State had no power to issue notification of cancellation. Assuming for the sake of argument that the State has the power to cancel the consolidation proceedings even after they are completed, we are of the opinion that this power must be exercised sparingly and for valid reasons. No doubt, the language of Section 16 is couched in a very wide terms. However, it is a well settled principle of law that where the discretion is wide, the authority exercising such wide discretion should be even more circumspect while exercising such power especially when this affects the rights of individuals. We had called for the records of this case and we find that till 1995, no party had raised any dispute with regard to the consolidation proceedings. It appears that in 1995 for the first time some of the villagers including the petitioners especially petitioner- appellant Duni Chand made a representation to the State government that there were many irregularities committed during the consolidation operations and hence the same may be cancelled. The Hon’ble Chief Minister marked the file to the Director, Consolidation of Holdings who in turn directed the Additional Director, Consolidation of Holdings to - 12 - conduct an inquiry. The Additional Director Consolidation went to the spot and according to his report about 20 right holders were present at the time of spot inspection. Out of these 10 were satisfied with the consolidation work whereas 10 had some reservations. It was noted that the consolidation work was done during the year 1984-85. The Additional Director Consolidation after going through the record came to the conclusion that the consolidation operations had been conducted strictly in accordance with the provisions of the Act and well lay down the principles of consolidation. Even Duni Chand appellant in LPA No. 35 of 2004 had given a written statement that they were satisfied with the consolidation operations except with regard to 8 khasra numbers only. His grievance was only in respect of these 8 khasra numbers. The Additional Director Consolidation advised all the right holders to sit with the consolidation staff and prepare a mutually agreed proposal and file the same as revision petition under Section 54 of the Act. This suggestion was not accepted by all the right holders. The learned Additional Director Consolidation recorded that the village was divided on party line and some of the villagers - 13 - did not seem to have any respect for law. The concluding portion of the report reads as follows:- “………….. In view of the above discussion, I have reached the conclusion that consolidation operations were done according to the provisions of the Act and Rules and only a few head strong people are hindering the process of handing over of possession of land allotted to some other right holders. In my opinion there is no need of either the cancellation or revocation of consolidation proceedings and the law may be allowed to take its own course. Those who are aggrieved by consolidation work may file revision petitions u/s 54 of the Act ibid if they so wish. If approved, we may send the report to the Govt. accordingly. Sd/- Additional Director Consolidation of Holdings HP Shimla -2.” The report of the Additional Director, Consolidation was accepted by the Director, Consolidation of Holdings and thereafter the Joint Secretary ( Rev) to the Govt. of H.P. issued a communication dated 23.7.1996 which reads as under:- “No. Rev. B.F. (8)-8/96 Government of Himachal Pradesh Department of Revenue. From The F.C. –cum- Secretary (Revenue) to the Government of Himachal Pradesh. To The Director, Consolidation of Holdings, H.P. Shimla-2. Dated Shimla 171 002 the 23-7-96. Subject: Report reg. consolidation work of village Panahar, Tehsil and Distt. Hamirpur, HP. Sir, I am directed to refer to your letter No. Rev. CH(P) (15P- Hamir)/84-3833, dated the 2nd July, 1996 and to say that keeping in view the - 14 - whole situation of the case, there is no need to cancel the consolidation work done in village Panahar of District Hamirpur. However, the petitioners may be heard to redress their grievances and remedial action be taken at the earliest. Yours faithfully, Sd/- Joint Secretary(Rev) to the Government of Himachal Pradesh.” This clearly shows that the Government had taken a decision not to cancel the consolidation work in village Panahar of District Hamirpur. The matter lay like this for almost two years. A note was appended on the file on 21.10.1998 more than two years after the issuance of this letter that a communication has been received from the Director Consolidation of Holdings whereby the office of the Hon’ble Chief Minister had requested to submit the report in respect of village Panahar. Noting No.85 was made in this behalf and in the noting it was clearly mentioned that the matter had already been considered and it had been decided not to cancel the consolidation operations in the concerned village. Thereafter the file was put up to the Financial Commissioner (Revenue) who also agreed with the same and vide his note No.87 opined that there is no need for canceling the consolidation proceedings. The Financial Commissioner (Revenue) further directed that the file be put up before the Minister of State for Revenue as well as to the - 15 - Hon’ble Chief Minister. The file was never put up before the Hon’ble Chief Minister but only before the Minister of State for Revenue who made the following noting on the file which reads as under:- “The Government should not give any decision against the wishes of the public as the residents of Village Panahar of Teh & Distt. Hamirpur are requesting time and again to the Hon’ble C.M. to cancel the consolidation work. Hence the consolidation work of this village may be cancelled under Rule 16(1) of the H.P. Holdings (Consolidation & Prevention) Act, 1971. This has also the approval of Hon’ble C.M. Sd/- Rajan Sushant Minister of State (Revenue), 12.11.1998.” Thereafter the impugned notification canceling the consolidation work was issued. We are constrained to note that the decision of the Minister of State for Revenue was against the entire material on record. All the concerned authorities had clearly come to the conclusion that the consolidation proceedings had been carried out in accordance with law and that any aggrieved party could file revision petition under Section 54 of the Act. There was no material before the Hon’ble Minister of State for Revenue to hold that the consolidation work should be cancelled. This decision is apparently motivated by some other extraneous considerations. The decision has not been taken in the public interest nor is it a decision in accordance with the provisions of Section 16 of the Act. - 16 - In view of the above discussion, we hold that the State Government did not have the power to cancel the consolidation operations since the same had come to an end. Assuming that the State had the power to cancel the consolidation operations, we find that the power has been exercised in an improper and mala fide manner and the report itself shows that the power has been exercised against the reports submitted by the various officers and for reasons which have no relevance with Section 16 of the Act. Therefore, we find no merit in these appeals and the same are accordingly dismissed. No costs. ( Deepak Gupta ), J. July 29, 2008 ( Rajiv Sharma ), J. s.