A.B. Rohatgi, J.
(1) This is a petition under Art. 226 of the Constitution impugning the order of the Financial Commissioner dated 10-5-1982.
(2) These are the facts. Under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948 (the Act), repartition took place in village Sanoth in the year 1976. Subsequently by orders dated 31-1-1981 and 10-3-1981 the Consolidation Officer withdrew the land from Kilas Nos. 47/12 (4 bighas-11 bis.) and 47/19 (2 bighas-7 bis.) situated in this revenue estate from the petitioner Ram Nath. First he allotted the land as withdrawn from Ram Nath to Gao Sabha, and subsequently to Ram Saroop, respondent No. 2 herein, after taking it away from the Gaon Sabha. This is a straight fight between the petitioner Ram Nath and the respondent Ram Saroop. I will refer to them by name now.
(3) The action of the Consolidation Officer was challenged by Ram Nath before the Financial Commissioner in 1982 by means of a revision petition under section 42 of the Act. The Financial Commissioner by order dated 24-9-1981 set aside the two orders of the Consolidation Officer which were impugned in the revision petition. In the course of his judgment he observed that 'the entire drama has been played in order to give undue benefit to Ram Saroop at the cost of Ram Nath for reasons best known to the Consolidation Officer.'
(4) The Financial Commissioner found as a fact that Ram Saroop and no claim to this land, that is, Killa Nos. 47/12 and 47/19. So he struck down the order. In the operative portion he said this :
'I am of the considered view that the withdrawal of the land in dispute from the petitioner is wholly unwarranted and the said land is to be restored to the petitioner. I, thereforee, accept the revision petition, set aside a part of the orders relating to the withdrawal of Killa No. 47/12 and 47/19 from the petitioner and restore the said to killa numbers to the petitioner. Consequently the case is remanded to the Consolidation Officer to appropriately make up the deficiency of the respondent No. 2 accruing an account of restoration of Killa Nos. 47/12 and 47/19 to the petitioners by this order.
(5) These last three' lines of remand opened the flood gates of future litigation. What happened after this was that the Consolidation Officer to whom the matter was remanded took the view that Ram Nath had been allotted land in Block Iv in excess of his demand. He found that Ram Nath had been allotted land to the extent of Rs. 20 whereas his demand in this Block was only for Rs. 13.10 annas. On this view of the matter he proceeded to hold that Ram Saroop had got his land in killa Nos. 41/16 and 17 and by allotting the excess land of Ram Nath to Ram Saroop the shape of chak of Ram Saroop shall be corrected. This was the substance of the order which he made on 16-12-1981. The result was that killa Nos. 41/16 and 17 were taken away from Ram Nath and given to Ram Saroop. Ram Nath is lieu of this land was allotted killa No. 55/8/9-10. This is the hub of the controversy. In substance what is under challenge is this action of the Consolidation Officer in taking away land from Ram Nath and allotting it to Ram Saroop.
(6) Dissatisfied with this order of the Consolidation Officer Ram Nath preferred a revision petition to the Financial Commissioner, Mr. D. K. Das. Mr. Das is the successor of the previous Financial Commissioner, Mr. W. Shaiza, who had made the order on 24-9-1981. Mr. Dass took the view that there was nothing wrong with the order of the Consolidation Officer. He, thereforee, dismissed the revision petition by his order dated 10-5-1982. This petition challenges his order also.
(7) The question is : Could the Consolidation Officer after the order of Mr. Shaiza take Ram Nath's land from killa Nos. 41/16 and 17 and give it to Ram Saroop in the manner as he has done This at once raises the question of the powers and jurisdiction of the authorities under the Act. Under section 21 of the Act there is a provision for repartition. This repartition took place in this village in 1976, as I have said above. In section 21(2)- it is provided that if any person is aggrieved by the repartition he may file a written objection with in 15 days of the publication of the Shaiza before the Consolidation Officer who shall after hearing the objector, pass such orders as he considers proper confirming or modifying the repartition. Within one month from this order of the Consolidation Officer an appeal is provided to the Settlement Officer by sub- section (3). A further appeal is provided to the Chief Commissioner under sub- section (4). Section 24(1) says:
'AS soon as the persons entitled to possession of holdings under this Act have entered into possession of the holdings, respectively allotted to them the scheme shall be deemed to have come into force and the possession of the allottees affected by the scheme of consolidation or, as the case may be, by repartition, shall remain undisturbed until a fresh scheme is brought into force or a change is ordered in pursuance of provisions of sub-sections (2), (3) and (4) of section 21 or an order passed under section 36 or 42 of this Act.'
(8) It would thus appear that after repartition persons entitled to the possession of the land allotted on repartition have to be put into actual and physical possession. They have to be given possession of the land allotted to them under the repartition scheme. After this is done the scheme shall be deemed to have come into force. Possession of the allottees thereafter cannot be disturbed except under the specified circumstances enumerated in the section. It is not the case of Ram Saroop that this change was ordered by the Consolidation Officer under any of the provisions enumerated in Section 24. Obviously no objection had been filed under Section 21. This is the admitted case of the parties because repartition took place as long ago as 1976. The dispute arose only in 1981. So no change was ordered in pursuance of any of the provisions of Section 21. Under Section 36 also the power has not been exercised. If there is any provision to which Ram Saroop can resort it is only Section 42 of the Act. Section 42 says:
'THE Chief Commissioner may at any time for the purpose of satisfying itself as to the legality proprety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit ; Provided that no order, scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the Chief Commissioner is satisfied that the proceedings have been vitiated by unlawful consideration.'
(9) Now Section 42 gives suo moto power to the Chief Commissioner (now the Financial Commissioner) to call for the record of the case for the purpose of satisfying himself to the legality or propriety of any order passed, scheme prepared, or confirmed or repartition made by any officer under this Act. Obviously this power could not have been exercised by the Consolidation officer. He was not the Financial Commissioner. The power appertains only to the Financial Commissioner, and not to the Consolidation Officer. In my opinion the Consolidation Officer had no power to make the impugned order. The question of deficiency arose on remand to the Consolidation Officer by Mr. Shaiza. The Consolidation Officer thought that the matter had been remanded to him for making up the deficiency of Ram Saroop which had accrued on account of the restoration of killa Nos. 47/12 and 47/19 to Ram Nath. But the question arises: Is there any deficiency in the land of Ram Saroop? If there was any deficiency the question ought to have been raised under Section 21 at the time of repartition. This is what Section 21 says. Ram Saroop if he was aggrieved on the ground that there was any deficiency or that he had been allotted not land by the repartition according to his demand or shere ought to have not agitated the question of deficiency within 15 days of the publication of the scheme of repartition. This was never done. What was done subsequently by the orders of the Consolidation Officer dated 31-10-1981 and 10-3-1981 was the subject matter of revision before Mr. Shaiza. He decided that it was not open to the Consolidation Officer to make order of withdrawal of land from Ram Nath. That being his view, and I think the right view on this subject, the question of deficiency did not arise. On the short ground that the Consolidation Officer had no power to make up the deficiency by taking away Ram Nath's land and by giving it to Ram Saroop, this care can be decided in favor of Ram Nath. This was robbing Peter to pay Paul for no rhyme or reason.
(10) This was re-enacting the old 'drama' to which Mr. Shaiza refers. It was again played in order to give benefit to Ram Saroop at the cost of Ram Nath. In fact Shaiza's order laid the controversy to rest. His remand order led to future litigation. On a true construction of Sections 21 and 24,truely speaking, nothing remained to be done after Mr. Shaiza had held that allotment of land to Ram Saroop was 'wholly unwarranted'. Mr. Shaiza, Financial Commissioner, had found as a fact that Ram Nath neither had excess allotment nor was there any deficiency in the allotment of land to him. During the period of five years that elapsed between the re-partition and the order of Consolidation Officer, Ram Nath must have put in labour and money to make the land more fertile. So he said :
'IT is thus not understandable as to why the learned Consolidation Officer took in his mind to disturb the allotment of Ram Nath after such a long time'. On a construction of Section 21 he came to the conclusion that the Consolidation Officer had no jurisdiction to suo moto withdraw the two killas from Ram Nath 'after a period of 5 years when the allotment had become final'.
(11) What the Consolidation Officer did after the remand is a repetition of the past. He committed the same mistake, he did not learn any lesson from the past. He again disturbed the possession of Ram Nath, though the allotment had become final under section 21 of the Act.
(12) Possession of land cannot be disturbed again and again after repartition. This is the dominant note struck by Sees. 21 and 24. The Consolidation Officer disturbed possession twice in the course of one year, 1981. The Act does not contemplate that repartition of 1976 be re-opened in 1981 on one ground or another by officers under the Act. The Act gives a quietus to frequent disturbances in the official skies.
(13) To satisfy myself about the deficiency question I called the Consolidation Officer as well as the Settlement Officer in Court. Two facts are clearly borne out from the record. In killa No. 41/16 and 17 Ram Saroop have no previous land. The previous number was 1193. That was also the land of Ram Nath and not Ram Saroop. The second fact that is borne out is that Ram Saroop did not have his centre in the adjoining No. 1193 which admittedly belongs to him and which is contiguous to 1191 of Ram Nath. I thereforee find that there is no basis for taking away killa No. 41/16 and 17 and allotting the same to the Ram Saroop, as was done by the Consolidation Officer.
(14) There is one other fact borne out from the record. First I was disinclined to record it because I thought it unnecessary. This led to an acrimonious debate. To be fair to Mr. Lakhi I have decided to record it.
(15) The fact which is borne out from the record is that no excess land was allotted to Ram Nath at the time of repartition. As I have said above, the Consolidation Officer has observed in the order dated 16-12-1981 that Ram Nath, the petitioner, has been allotted land in Block 4 to the extent of Rs. 20 whereas he has got his demand in this block of Rs. 13.00 annas'. This statement is factually incorrect. The record shows that in Block 4 Ram Nath has a joint khata with his brother Mohan Lal. Ram Nath made a demand for Rs. 12.00 and Mohan Lal made a demand for Rs. 8.13 annas. The aggregate two were for Rs. 20-13 annas. The allotment was made of Rs. 20 only. This is not in excess of the holdings in the joint khata of Ram Nath and Mohan Lal. If there was any person who had any objection to this allotment of land to the extent of Rs. 20.00 to Ram Nath, he could only be his brother Mohan Lal. At the time of repartition Mohan Lal must have agreed that land to the extent of Rs. 20 in the joint khata be allotted to his brother Ram Nath alone. From 1976 till today Mohan Lal has not made may complaint. It is only the Consolidation Officer who seems to have taken up this point himself. What he has ignored is that Ram Nath and his brother Mohan Lal had a joint khata and the land allotted to Ram Nath was not in excess of their holdings in the joint khata.
(16) Mr. Lakhi says that this fact of joint khata has not been pleaded in the writ petition. He further submits that Mohan Lal has not been made a party to this writ petition. This question infact does not arise except to show that the finding of the Consolidation Officer is against the record.
(17) Suppose the land was allotted in excess to Ram Nath in 1976. The Consolidation Officer had no right in 1981 to take away the excess land and give it to Ram Saroop. Section 24 attaches finality to the repartition which took place in 1976. The possession of Ram Nath cannot be disturbed now. It must 'remain undisturbed', to use the language of Section 24. In my opinion Sees. 21 and 24 are a complete answer to the argument of Mr. Lekhi.
(18) On the ground that the Consolidation Officer had no Jurisdiction to make the impugned order, I allowed the writ petition and set aside his order dated 16-12-1981 and the order of the Financial Commissioner dated 10-5-1982 made on revision. No costs.