S. Muralidhar, J.
1. This writ petition seeks the quashing of (a) an order dated 20.4.2000 passed by the Consolidation Officer, Respondent No. 3, under Section 21(2) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 ('Consolidation Act') and (b) and order dated 23.5.2000 passed by the Financial Commissioner, Respondent No. 2, dismissing the petitioner's revision petition against the order of Respondent No. 3. It seeks a mandamus to Respondent No. 3 to allot, further to a scheme of consolidation, the properties in question in equal halves to the petitioner and Respondent No. 4
2. The facts leading to the filing of this writ petition are that land admeasuring 58 bighas and 19 bids was in village Khanjhawala, North-West District, Delhi was recorded in the joint names of Shri Moji Ram, the father of the petitioner and Shri Amar Singh, brother of Shri Moji Ram, uncle of the petitioner, Respondent No. 1 herein, in equal shares. Pursuant to an oral family settlement in 1951, both parties came into separate and exclusive cultivating possession of their respective shares of the land so divided. On 24.1.1987 an agreement was entered into between Shri Moji Ram, the petitioner's father and his brother Shri Amar Singh, Respondent No. 4 herein, whereby it was decided to reduce into writing the respective shares with each of the parties as a result of the oral family settlement already arrived at in the year 1951.
3. Meanwhile, Shri Moji Ram agreed to give on lease land to the extent of 12 bighas and 8 bids was out of the portion that had come to his possession for the purpose of a brick kiln. Since this was not a purpose for which the land could be used, proceedings under Section 81 of the Delhi Land Reforms Act, 1952 (DLRA) were initiated and the said land came to be vested in the Gram Sabha by an order dated 22.9.1992 passed by the Revenue Assistant. Against this order, both the petitioner and Respondent No. 4 jointly filed an appeal under Section 185 DLRA to the Additional Collector (North-West), Delhi.
4. After the death of his father Shri Moji Ram, the petitioner filed a suit on 28.5.1991 seeking a permanent injunction to restrain Respondent No. 4 from taking forcible possession of the portion of the land stated to be in possession of the petitioner. On 5.7.1991, the learned Sub Judge, Delhi before whom the aforementioned suit came for hearing, recorded a compromise arrived at between the plaintiff Shri Sahib Singh (petitioner herein) and the defendant Shri Amar Singh (Respondent No. 4 herein) in the following terms:
1. That the defendant has agreed to give 300 sq.yds. land (30'x90') bearing khasra No. 42/20/1 and 19 adjoining to puce road and with the passage of Harijan Basti of the village Kanjhawala, while the plaintiff has agreed to give the disputed land of this suit measuring 148 sq. yds. to the defendant.
2. That besides the above the land bearing Kh. No. 18/2, 23, 6/3, 51/8 and 1/2 share in all the 3 Khasra No. 97/11, 20, 21, 104/2/2, 3/1 and 3/2 has been given to the plaintiff and Khasra No. 42/20/1, 19, 18, 23, 51/3 and 1/2 share in all the three khasra Nos. 97/11, 20 and 21 to the defendant (Amar Singh). This partition is according to the value of the land and by mutual consent.
Accordingly, the learned Sub Judge passed an order dismissing the suit as withdrawn.
5. Consolidation proceedings in respect of the lands in village Kanjhawala were commenced under the Consolidation Act some time in 1996. In these proceedings both the petitioner and Respondent No. 4 submitted an application for the separation of their respective khatas. Initially, the Consolidation Officer separated the khatas on a 50:50 basis for the entire holdings of 58 bighas and 19 biswas. However, Respondent No. 4 filed objections under Section 21(2) of the Consolidation Act pointing out that a family settlement had been entered into with the petitioner's father in 1951 following which a written agreement had also been signed by both the parties in January 1987. Further, as 21 bigha and 7 bids was of the land in the possession of Respondent No. 4 had been included in the extended lal dora, he was entitled to be allotted land in lieu thereof as per the resolution dated 20.7.1998 of the Consolidation Officer. The Consolidation Officer heard both the parties. He also took cognizance of the report of the Halqua Patwari wherein it was pointed out that land allotted to the petitioner was in excess of his entitlement and that there was a deficiency of 13 bighas and 6 bids was in the land allotted to Respondent No. 4. Further it was found that Plot No. 234 falling in Khasra No. 92/20/1 and 19 was wrongly allotted to the petitioner whereas it should have been allotted to Respondent No. 4. Accordingly the Consolidation Officer by order dated 11.2.1999 made an order under Section 21(2) of the Consolidation Act whereby the petitioner was allotted 21 bighas and 10 bids was of land and the Respondent No. 4 was allotted 47 bighas and 11 bids was of land.
6. Aggrieved by the aforementioned order dated 11.2.1999, the petitioner filed a Revision Petition which came to be allowed on 29.11.1999 by the Financial Commissioner, Delhi remanding the matter to the Consolidation Officer for fresh determination on merits. Thereafter the Consolidation Officer again heard the parties and passed an order dated 20.4.2000, whereby the objection/claim of Respondent No. 4 was sustained by observing as under:
At the outset it is pertinent to mention that the ordinary area of the parties share is exactly half and half but the allotment made by the Consolidation Officer to Shri Sahib Singh is more than half. Shri Amar Singh has been allotted 28 bighas 01 bids was simple area whereas the allotment made to Shri Sahib Singh is 30 bighas and 08 biswas. The difference that has arisen is on account of the fact that 21 bighas and 07 of land in the possession of Shri Amar Singh was included in the extended Lal Dora and thereby allotment of Beside Firni was made to him in lieu there of whereas only one Kila No. 51/8 measuring 4 bighas 16 bids was out of the share of Shri Sahib Singh has been included in the extended Lal Dora. Thus Shri Sahib Singh has been allotted less BesideFirni.
As already explained only one Kila of Shri Sahib Singh has been included in the Firni as such he has been awarded less value whereas the land of Shri Amar Singh is 21 bighas and 08 bids was of pre-consolidation numbers in his possession has been included so the standard area has been increased on account of this inclusion in the Phirni. So there is absolutely no question of title involved in the case as alleged by Shri Sahib Singh.
7. Aggrieved by the said order dated 20.4.2000 the petitioner again filed a Revision Petition which was dismissed by the Financial Commissioner on 23.5.2000. It was observed by the Financial Commissioner that the family settlement entered into between the parties, which became part of the judicial record, was taken note of by the Consolidation Officer and that thereforee no illegality had been in passing the said order dated 20.4.2000. The Revision Petition was accordingly dismissed. Aggrieved by the aforementioned order dated 20.4.2000 of the Consolidation Officer and 25.3.2000 of the Financial Commissioner, the petitioner has filed this writ petition seeking the reliefs mentioned in the first paragraph of this judgment. The writ petition was initially dismissed in liming by this Court on 14.6.2000. Later, on an appeal to the Hon'ble Supreme Court by the petitioner the matter was remanded to this Court for a decision on merits.
Submissions of Counsel
8. The submissions of the learned Counsel for the petitioner were as follows:
(a) Both the Consolidation Officer as well as Financial Commissioner erred in granting a larger share to Respondent No. 4.
(b) After making an allotment under Section 21(1) the Consolidation Officer became functus officio thereafter could not have disturbed the allotment originally made.
(c) There was no family agreement executed in 1987 as alleged. The factual basis of the impugned order passed by the Consolidation Officer was, thereforee, non-existent.
(d) Under Section 25 of the Consolidation Act, the Consolidation Officer was bound to maintain the status quo obtaining before the consolidation proceedings.
(e) The Consolidation Officer was not competent to adjudicate on the question of title.
(f) There was no power of partition of joint lands conferred on the Consolidation Officer as far as the National Capital Territory of Delhi was concerned. The power of partitioning joint holdings was only on a Revenue Assistant against whose order an appeal lay to the Deputy Commissioner in terms of Section 185 (read with item 11 of the Schedule) of the DLRA.
9. In reply Ms. Avnish Ahlawat, learned Counsel for Respondent No. 4 pointed out that the petitioner was bound by the family settlement on the basis of which a compromise was entered into in 1987 and which settlement has been acknowledged in the judicial order dated 5.7.1991 in the suit for injunction filed by the petitioner himself. It was further pointed out that the vesting of the land to the extent of 12 bighas and 8 bids was in the Gram Sabha has been since set aside and the land has been returned to the petitioner. Moreover, the petitioner has moved an application before the Consolidation Officer to allot the said land to him as per the scheme. It is submitted that having applied for the allotment of the said land, the petitioner should not be allowed to resile from the family settlement already arrived at.
10. Upon a consideration of the submissions of the learned Counsels for the parties, we are of the view that there is no merit in the present writ petition. We may first examine the relevant provisions of the DLRA and the Consolidation Act.
The legal position under the Consolidation Act
11. As regards the compulsory consolidation of agricultural holdings, the relevant statute is the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 ('Consolidation Act') under which schemes for consolidation of agricultural holdings are prepared and individual land holders are allowed to have their Khatas joint or separate and also allotment of land at a price fixed in the scheme itself. The Consolidation Act is consistent with the DLRA although the two are different statutes operating in different fields.
12. It may be first noticed that the Consolidation Act empowers the Consolidation Officers to prepare Consolidation Schemes which are to be confirmed in terms of the procedure outlined in Section 20. Section 21 empowers the Consolidation Officer to 'carry out repartition in accordance with the scheme of consolidation of holdings confirmed under Section 20.' Any person aggrieved by the repartition can, in terms of Section 21 (2) file a written objection which is required to be disposed of by the Consolidation Officer after hearing the objector.
13. Section 25 of the Consolidation Act reads as under:
25. Rights of landowners and tenants after consolidation same as before-- A landowner or a tenant shall subject to the provisions of Section 16 have the same right in the land allotted to him in pursuance of the scheme of consolidation as he had in his original holding or tenancy as the case may be.
The contention of the petitioner that Section 25 prohibits the alteration of the status quo present at the time of preparing the scheme of consolidation is based on an incomplete reading of Section 25 which itself states that it is subject to the provisions of Section 16. Section 16(1) and 16(4), which are relevant for the purposes read as under:
Section 16. Schemes to provide distribution of land held under occupancy tenure between occupancy tenants and landlord--(1) The scheme prepared by the Consolidation Officer may provide for the distribution of land held under occupancy tenure between the tenants holding a right of occupancy and his landlord in such proportion as may be agreed upon between the parties.
16(4) The Consolidation Officer shall, after considering the objections if any, made to the proposal, submit it with such amendments. If any, as he may consider necessary, to the Settlement Officer (Consolidation), together with the objections received, his recommendations thereon and a statement of the amounts of compensation, if any, which in his opinion are payable, and of the persons by whom and the persons to whom such recompensation is payable. The decision of the Settlement Officer(Consolidation) on the proposal and regarding the amount of compensation and the persons by whom such compensation, if any, is payable, shall, be final.
14. The procedure for preparation of scheme for consolidation is contained in the Delhi Holding (Consolidation and Prevention of Fragmentation Rules, 1959) (Delhi Holdings Rules). Rule 4(5) of the said Rules reads as under:
4. Preparation of Scheme of consolidation--
(5) Any person desiring his share of a joint holding to be mentioned or his separate holding to be amalgamated with another holding shall at any time prior to the preparation to the draft scheme, file an application before the Consolidation Officer. The application shall contain the names and addresses of the owners concerned, the Khasra numbers and the area of the holding and the share of the applicant. The Consolidation Officer may, after notice to the parties concerned, pass such orders on the application as he may deem be provided that no such application shall be accepted unless--
(i) all the parties agree,
(ii) no question of title is involved, and
(iii) the holding is not reduced to less than 8 standard acres of an individual owner.
15. In the instant case the facts clearly show that the scheme has been prepared in accordance with the Section 16 of the Act. The Consolidation Officer has rightly proceeded on the basis of the family settlement arrived at between the parties. On a consideration of the above legal position, we are unable to agree with the contention of the counsel for the petitioner that the status quo ante the consolidation scheme was required to be maintained by the Consolidation Officer. The contention that after publishing the scheme, the Consolidation Officer becomes functus officio and that he cannot partition the property is also without basis in view of the specific provisions contained in Section 21 (1) and (2) of the Consolidation Act.
The legal position under the DLRA
16. The Delhi Land Reforms Act, 1952 (DLRA) seeks to do away with uneconomic holdings of small farmers (which is defined to be less than 8 standard acres) in the sense that it seeks to prevent the fragmentation of land holding as a result of sale, partition, lease, succession etc. which might result the holding being reduced to an uneconomic one. It also mandates that the land will be used only for agricultural purposes. As already noticed, the Consolidation Act is consistent with the DLRA although the two are different statutes operating in different fields.
17. In order to examine the contention of the petitioner that the Consolidation Officer could not examine the question of title and that the power in this regard vests only with the Revenue Assistant under the DLRA, the provisions of that statute may be noticed. Section 185 of the DLRA reads as under:
185. Cognizance of suits, etc. under this Act-
(1) Except as provided by or under this Act no court other than a Court mentioned in column 7 of schedule I shall notwithstanding anything contained in the Code of Civil Procedure 1908, take cognizance of any suit, application or proceedings mentioned in column 3 thereof. SCHEDULE- I (Section 185)Sl. No. Section of the Act Description of suit Court of originaljurisdiction1. 2. 3. 7.11 55 Suit for partition Revenue Asstt.of holding
The bar under Section 185, in our view does not apply in the present case since the Consolidation Officer has not in fact decided any suit for partition. He has only decided an application under Section 21(2) of the Consolidation Act, for which he had the necessary power in terms of the said Act. thereforee, the objection raised by the petitioner to the jurisdiction of the Consolidation Officer in the instant case is without merits.
The legal effect of the family settlement and compromise
18. The denial by the petitioner of the family settlement is clearly an argument of desperation and is belied by the records of the case which show that the petitioner himself had accepted the family settlement. In any event there are several factors that should preclude the petitioner from questioning the family settlement. The first factor is that the petitioner entered into a compromise with the Respondent No. 4, which formed part of the judicial record in the proceedings dated 5.7.1991 of the Sub Judge, Delhi in the suit filed by the petitioner himself. The petitioner has never challenged this order.
19. The second factor is that in the proceedings initiated under Section 81 of the DLRA for release of the land admeasuring 12 bighas and 8 bids was which was vested in the Gram Sabha, the petitioner added the Respondent No. 4 as a co-petitioner. On 12.11.2001 an order was passed by the Revenue Assistant accepting the report of Halqua Patwari that the land was being used only for agricultural purposes and the proceedings under Section 81 of the DLRA in respect of the said land were dropped. Consequently, the said land fell back to the share of the petitioner.
20. The third factor is that Respondent No. 4 applied to the Tehsildar of village Kanjhawala under Section 22(5)(i) and Section 23 of the DLRA to incorporate the family settlement between Respondent No. 4 and the petitioner herein. This application was made on 3.4.1998. The Tehsildar, after hearing both the parties allowed this application overruling the objections of the petitioner that the family settlement could not be given effect to in the revenue records. This was not challenged by the petitioner thereafter.
21. On a consideration of all the above facts and circumstances, we find that the approach of the Consolidation Officer in the present case cannot be faulted. He rightly observed that the family settlement had to be given credence. He also rightly observed that the petitioner had been allotted a lesser extent of land on account of the fact that Respondent No. 4 had given up a greater portion of his share for the purposes of the extended Lal Dora. It was only the reworking of the value of the land which led to the allotment of 47 bighas and 11 bids was to Respondent No. 4 and 21 bighas and 10 bids was to the petitioner. This was consistent with the family settlement already arrived at and there was no question of re-determination of the title of the parties. In our view, the Financial Commissioner also rightly rejected the Revision Petition of the petitioner. We find no ground at all to interfere with these concurrent findings of fact by the Consolidation Officer and the Financial Officer. Further, as already discussed hereinabove, there is no merit in any of the contentions raised by the petitioner on the interpretation of either Section 25 of the Consolidation Act or Section 185
22. For all of the above reasons, the writ petition is dismissed with no order as to costs.