C.R. Thakur, J.@mdashSarvshri Lachhi Ram and Lachhaman feeling aggrieved against the order, dated 16th September, 1977, passed by the Deputy Commissioner, Bilaspur Camp Hamirpur exercising the powers of the State Government have filed this writ petition with a prayer to quash the order.
2. In the year 1960-61, consolidation proceedings under the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the "Act") were started in village Gahlian, Tappa Ugialta in Tehsil Hamirpur. A scheme was prepared and thereafter repartition of the property under the scheme was done. Jai Chand, Respondent No. 2 was not satisfied with the repartition, as, according to him, he had a right for allotment of khasra number 1922-A for extension of his abadi as it was contiguous to his land and was also originally owned and possessed by him. During the repartition under the consolidation scheme it was allotted to the present Petitioners. He, therefore, filed his objections before the Consolidation Officer, who dismissed the same. Against that an appeal under the provisions of Section 21(2) was filed but the Settlement Officer (Consolidation) vide Annexure A, dated 6th May, 1969 dismissed the same. He then went in revision under the provisions of Section 42 to the State Government, who passed this impugned order accepting the revision petition and allotting the land in question to the Respondent. It is against this order of acceptance of the revision petition and allotment of the land to him, that the present Petitioners have tiled this writ petition.
3. The learned Counsel for the Petitioners has raised three points to assail the validity of this order. The first is that Section 21(4) of the Act provides for an appeal against an order of the Settlement Officer (Consolidation) and, according to him, the Respondent by filing a revision petition u/s 42 had deprived the Petitioners of their right of app:al or revision. The learned Counsel for the Respondent contends that there is no bar for a person who feels aggrieved against any order of the Consolidation Officer or of the Settlement Officer to avail of the remedy u/s 42 without first availing of the remedy as provided u/s 21(4) of the Act. In my opinion, the submission made by the karned counsel for the Respondent carries weight. The State Government has got vast powers to call for the record and examine the same in any case pending before or disposed of by any officer under the Act in order to satisfy itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made. This power can be exercised by the State Government either suo motu or when it is moved by any person who feels aggrieved. It would be apparent from the reading of the provisions of Section 42 that if a person had not availed, himself of the remedies given to him u/s 21 of the Act that did not estop him from filing the revision petition u/s 42 before the State Government which otherwise also can send for the record to satisfy itself with regard to the legality or propriety of any order passed by the officers under the Act. I may also refer to a case Bhagat Singh v. Additional Director Consolidation of Holdings and Ors. 1966 CriLJ 462 wherein it has been laid down.
The section nowhere says that the State Government can not interfere in a case where the remedies provided by Section 21 of the Act have not been availed of by the person, who has made an application under this section. The words "at any time" used therein indicate that he can approach the State Government at any stage of the proceedings and it is not necessary for hi& to file objections and appeals u/s 21(2), (3) and (4) before doing so.
Further, I may also refer to
Section 42 gives independent power to the Punjab Government to intervene suo motu at any stage of the consolidation proceedings. Section 21 of the Act does not exclude the independent operation of section 42 of the Act. The mere fact that in a particular case the Punjab Government was moved u/s 42 of the Act by the Respondent does not affect the position.
In view of these authorities and bare reading of the provisions of Section 42 which confer vast powers on the State Government it would be clear that this submission made by the learned Counsel for the Petitioners that the State Government cannot exercise this power u/s 42 unless the Respondent had first gone in appeal under the provisions of Section 21(4) against the order of the Consolidation Officer to the Assistant Director (Consolidation), was got no merit.
4. The second point raised by the learned Counsel is that the Deputy Commissioner, Respondent No. 1, has allotted this khasra number 1922-A to Respondent No. 2 without changing the scheme. The scheme is the magna Charta of the repartition, and, according to him, under the scheme a person has first to reserve a portion of land for construction of his abadi and he has to give double the land. According to him, the land in question was selected by the Petitioners by giving double the land to the Respondent. The Respondent had not made any reservation before the repartition of any land for his abadi and, therefore, this order of Respondent No. 1 was vitiated. But, this submission also does not carry weight inasmuch as the learned Counsel for the Petitioner has not filed the copy of the scheme so as to say as to what were the requirements under the scheme whether reservation was to be made and how it was to be made. The learned Counsel during the course of arguments requested that he may be given time to file the copy of the scheme but this is not the stage that he should be permitted to file the because this writ petition was filed as back as 1971 and since than he has not taken any steps to file any document. Therefore, in the absence of the document it cannot be said as to what was contained in the scheme whether the allotment made by Respondent No. 1 was after he had altered the scheme or it was consonance with the scheme. This point also therefore has got no force and is hereby repelled.
5. The third point raised was that the revision petition was dismissed by the Deputy Commissioner exercising the powers of the State Governmentunder Section 42 of the Act in default on 11-2-71, but subsequently on an application made by the Respondent the same was restored without hearing the Petitioners and, therefore, this impugned order was also had on that account and cannot be sustained. He has further said that otherwise too Respondent No. 1 was not competent to review his earlier order and for this he has placed reliance on a decision of this Court in Dhvan Singh v. Director of Consolidation etc. ILR 1975(HS) 727 and another case decided by the Punjab High Court in Deep Chand and Ors. v. Addl. Director Consolidation of Holdings, Punjab, and Anr. AIR 1964 P&H 249. In the former case the Director had disposed of the revision petition on merits in the absence of the Petitioner. So, it was held in that case:
If the applicant was absent, the requirement was that ordinarily his application should be dismissed in default only and not decided on the merits. For dismissing on application in default it is the absence of the Petitioner which is relevant, Section 54 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, gives the widest powers to the Director in the matter of disposing of a petition before him. He has the discretion, in the absence of the Petitioner, to dismiss the petition in default or to decide it on merits.
Therefore, this authority has got no application to the facts of the present case. In so far as the latter authority is concerned the ratio laid down therein is also not applicable as that case had been decided on merits and it was accordingly held therein that the Court had no power to revise its earlier order made on merits. Herein the present case the revision petition was not disposed of on merits but it was only dismissed in default and, therefore, subsequently the petition was restored but the present Petitioner, it appears, did not make any objection. There is nothing in the impugned order if any objection was raised by the Petitioners that it could not be heard because the order restoring the revision petition was bad. Besides this, the Petitioners cannot be said to have been prejudiced because they were present when the revision was heard on merits. They were also given opportunity to be heard. On that basis this order cannot be said to be suffering from any jurisdictional defect on the basis of which a writ petition will lie under the provisions of Articles 266/227 of the Constitution. The order passed by the Tribunal may be wrong or illegal but this Court in exercise of its extraordinary powers under the aforesaid Articles cannot interfere with the order unless some legal flaw, such as the defact in the jurisdiction which was exercised by the Tribunal, has been shown. There is no error apparent on the face of the record so as to say that the order is bad and is liable to be set aside.
6. These were the only points that were raised. These points have got no force and they are all repelled, and tha result is that this petition is dismissed with no orders as to costs.
