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Ranbir Singh and anr. Vs. Mangal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberC.P.A. No. 227 of 1967 and C.M. No. 2018 of 1968
Judge
Reported inAIR1972P& H274
ActsPatiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act, 2007BK - Sections 29; East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 - Sections 14(1) and 30
AppellantRanbir Singh and anr.
RespondentMangal Singh and ors.
Appellant Advocate H.S. Wasu and; L.S. Wasu, Advs.
Respondent Advocate G.S. Grewal, Adv.
Cases ReferredIn Balwant Singh v. Financial Commr. Punjab
Excerpt:
.....well settled that consolidation proceedings cannot be treated to be pending unless at least the consolidation officer is appointed. any transfer can be made and transferee will be given good title, and all that is provided is that such a transfer will not be taken into consideration for affecting the rights of the landowners under the scheme of consolidation. it is well known that the scheme of consolidation normally provides that the landowner should be given his tak at his first major portion and if his percentage is not higher as compared with the other landowners then he should be shifted to his second major portion and so on. thus a transfer made during pendency of the consolidation proceedings could be with a view to change the major portion from one place, where landowner had..........32 of the punjab act is as follows:--'after a notification under sub-section (1) of s. 14 has issued no proceedings under chapter ix of the punjab land revenue act, 1887 in respect of any estate or sub-division of an estate effected by the scheme of consolidation shall subject to the provisions of section 16-a, be commenced and where such proceedings were commenced before the issue of the notification they shall remain in abeyance during the pendency of the consolidation proceedings'.in that case, however, admittedly the scheme had even been prepared by the consolidation officer on the date when the partition was effected.5. in balwant singh v. financial commr. punjab 1969 pun lj 65 which was another case of section 32 of the punjab act, the following observations were made by the.....
Judgment:

Harbans Singh, C.J.

1. This appeal under Clause 10 of the Letters Patent involves the interpretation of Section 29 of the Patiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act 2007 BK (hereinafter referred to as the Pepsu Act). This section runs as follows:--

'After a notification under sub-section (1) of S. 14 has issued and during the pendency of the consolidation proceedings no landowner upon whom the scheme will be binding shall have power without the sanction of the Consolidation Officer to transfer or otherwise deal with any portion of his original holding so as to affect the rights of any other landowner under the scheme of consolidation'.

Section 30 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Punjab Act) exactly corresponds to Section 29 of the Pepsu Act.

2. In the case before us on 3rd July, 1956 a notification under sub-section (1) of S. 14 of the Pepsu Act was published in the Official Gazette. This notification was not published in the village till 15th October, 1957 the appellant Ranbir Singh, made transfer of certain land belonging to him in the village concerned to his sons by way of gift and mutations were effected. In dealing with the question as to the location of the major portion of Ranbir Singh etc., the Additional Director took into consideration these mutations. The party adversely affected namely, Mangal Singh, filed Civil Writ No. 183 of 1966 challenging this action on the ground that in view of Section 29 of the Pepsu Act, no alienation of land could be taken into consideration for the purpose of consolidation without the sanction of the Consolidation Department. It is a common case that the Consolidation authorises did not apply their mind to the question whether it was a fit case for granting the sanction or not, but it was felt by the Additional Director that inasmuch as the alienation took place before the notification was actually published in the village. Section 29 of the Pepsu Act did not apply and, consequently, there was no question of granting any sanction.

3. The learned Single Judge, after hearing the parties, came to the conclusion that Section 29 of the Pepsu Act lays down a prohibition against any alienation made after the notification being taken into consideration for the purpose of consolidation unless such an alienation is permitted by the Consolidation Department. Consequently, he accepted the writ petition set aside the impugned order and directed that 'they would now proceed with the matter in accordance with the provisions of Section 29 as interpreted in this judgment'. He left the parties to bear their own costs. Ranbir Singh being aggrieved has filed this Letters Patent Appeal.

4. It is now well settled that consolidation proceedings cannot be treated to be pending unless at least the Consolidation Officer is appointed. See in this respect Nanga v. Additional Director of Consolidation of Holdings, 1965 Cur LJ 31=(AIR 1965 Punj 336). That was a case under Section 32 of the Punjab Act, which is in the same terms as Section 31 of the Pepsu Act. Section 32 of the Punjab Act is as follows:--

'After a notification under sub-section (1) of S. 14 has issued no proceedings under Chapter IX of the Punjab Land Revenue Act, 1887 in respect of any estate or sub-division of an estate effected by the scheme of consolidation shall subject to the provisions of Section 16-A, be commenced and where such proceedings were commenced before the issue of the notification they shall remain in abeyance during the pendency of the consolidation proceedings'.

In that case, however, admittedly the scheme had even been prepared by the Consolidation Officer on the date when the partition was effected.

5. In Balwant Singh v. Financial Commr. Punjab 1969 Pun LJ 65 which was another case of Section 32 of the Punjab Act, the following observations were made by the learned Single Judge:

'........................................................

The starting point of consolidation is certainly the notification under S. 14(1), which is issued by the State Government, but unless the Consolidation Officer is appointed and a scheme for repartition, as provided under Section 14(2) is prepared, it cannot be said that any consolidation proceedings were pending'.

6. The question for determination, however, is what is the meaning of the opening part of Section 29 of the Pepsu Act. This opening part of Section 29 of the Pepsu Act runs as under:--

'After a notification under sub-section (1) of S. 14 has issued and during the pendency of the consolidation proceedings.......................................'

During this period, as indicated by the opening part of Section 29 of the Pepsu Act, no landowner can without the sanction of the Consolidation Officer make any alienation to affect the rights of the other landowners under the scheme of the consolidation. One thing is clear that this section does not in any way affect the question of title. Any transfer can be made and transferee will be given good title, and all that is provided is that such a transfer will not be taken into consideration for affecting the rights of the landowners under the scheme of consolidation. It is well known that the scheme of consolidation normally provides that the landowner should be given his Tak at his first major portion and if his percentage is not higher as compared with the other landowners then he should be shifted to his second major portion and so on. Thus a transfer made during pendency of the consolidation proceedings could be with a view to change the major portion from one place, where landowner had inferior land to another place, where he has got better quality land. It is to avoid such an eventuality that Section 29 has been enacted.

7. According to the learned counsel for the appellant what the opening part of Section 29 of the Pepsu Act means is that not only a notification under Section 14(1) should be issued, but the consolidation proceedings must also be actually 'pending' at the particular time to make the prohibition against transfer effective. According to him if a notification has been issued but the consolidation proceedings cannot be said to be pending, then during this intervening period i.e., between the notification in the Official Gazette and the appointment of the Consolidation Officer or even the preparation of the scheme, every landowner is at liberty to transfer his holding or any part thereof and that such a transfer must be taken into consideration by the Consolidation Officer and it is not for him to give or refuse permission for such a transfer.

8. If the opening part of Section 29 of the Pepsu Act is to be interpreted in the manner stated by the learned counsel for the appellant, then the first part of it, namely, 'After a notification under sub-section (1) of S. 14 has issued' will become absolutely redundant. The same effect could have been given by the Legislature by starting this section from the words 'during the pendency of the consolidation proceedings'. Obviously no consolidation proceedings can be 'pending' unless a notification has already been issued. Consequently, if the intention of the Legislature was that only an alienation during the pendency of the consolidation proceedings was prohibited, there was no necessity for adding the words 'After a notification under sub-section (1) of S. 14 has issued'. We feel that if this interpretation put forward by the learned counsel for the appellant is accepted that will defeat the very object with which Section 29 has been added. The idea is that as soon as the notification is issued and the intention of the Government to effect consolidation in a particular village becomes known, the landowners may not enter into mala fide and bogus transactions in order to affect the places where their major portions are located. If a transaction is a genuine one, then the Consolidation Officer can give permission if the transferor or the transferee satisfies him in this respect.

9. To us it is clear that what is mean by the opening part of Section 29 is that the restriction or prohibition mentioned in the section begins immediately after the issue of the notification. This issue of the notification has to be published in the Official Gazette. The issue of the notification is treated as one thing and publication in the village as another, as is clear from the wording of sub-section (1) of S. 14 of the Pepsu Act, which runs as under:--

'With the object of consolidation of holdings in any estate or group of estates or any part thereof for the purpose of better cultivation of lands therein, the Government may of its own motion or on application made in this behalf, declare by notification and by publication in the prescribed manner in the estate or estates concerned its intention to make a scheme for the consolidation of holdings in such estate or estates or part thereof as may be specified'.

10. Thus the intention of the Government is to be indicated by two acts, first by declaring this intention by a notification and, secondly by publishing it 'in the prescribed manner in the estate or estates concerned'.

11. The words 'and during the pendency of consolidation proceedings' do not provide an additional condition attached for the restriction is Section 29 to come into force but are there to give an indication of the period during which this restriction is to remain in force. In other words, this restriction begins as soon as the notification is issued or published in the Gazette and continues 'during the pendency of consolidation proceedings' and the restriction ceases as soon as it can be said that the consolidation proceedings are no longer pending.

12. Main reliance by the learned counsel for the appellant for his contention is placed on Balwant Singh's case (supra) 1969 Pun LJ 65. The facts of that case were peculiar. A notification was issued in the Gazette. No Consolidation Officer was appointed and nothing was done for more than two years when ultimately the original notification was withdrawn. During this period between the issue of the notification and its withdrawal partition proceedings which had started earlier were continued and actual possession was given by the Revenue Officer, under the Land Revenue Act, to the cosharers of their respective shares. The question before the learned Judge was whether these proceedings for partition were void in view of the restriction in Section 32 of the Punjab Act. In view of these peculiar facts, after observing (which observations have been reproduced above), that the starting point of the consolidation is the issue of the notification under Section 14(1) but the consolidation proceedings can be said to be pending only when the Consolidation Officer is appointed, it was observed by the learned Judge as follows:--

'The mere issue of the notification under Section 14(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, without any further step having been taken will not make the consolidation proceedings pending in the village'.

13. There can be no quarrel with these observations as such, but the learned Judge nowhere discussed the question whether under Section 32 of the Punjab Act the restriction will start as soon as the notification issued or restriction will start only when the Consolidation Officer is appointed. As in that case even the notification had been withdrawn subsequently, it was in fact, nor necessary to decide when the restriction would have started. In any case, Balwant Singh's case, 1969 Pun LJ 65 (supra) is hardly an authority for the proposition which is being canvassed by the learned counsel for the appellant. In fact, this matter was never decided by the learned Judge.

14. As detailed above, we are definitely of the view that the restriction in Section 29 of the Pepsu Act against alienation begins as soon as a notification is issued and we therefore, find no reason to differ from the finding arrived at by the learned Single Judge and dismiss this appeal. There will be no order as to costs.

Ranjit Singh Sarkaria, J.

15. I agree.

16. Appeal dismissed.


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