The State Government has the power under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, to review any order passed, scheme prepared or confirmed, or repartition made by any officer under the Act, and this power is independent of the power of the authority confirming the scheme.

D.Falshaw, J.

1. This is an appeal filed by the State under clause 10 of the Letters Patent against the order of Mehar Singh, J. accepting a petition filed under Article 226 of the Constitution by two brothers Makhan Lal and Sis Ram and quashing an order passed by the Director, Consolidation of Holdings exercising the powers of the Government under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act of 1948, dated the 15th of September, 1958.

2. The facts are that consolidation had taken place in Jamalpur, the village of the petitioner and the three non-official respondents in the writ petition, and the final scheme was published and repartition carried out during 1950. Nearly two years later in May, 1958 Onkar Singh, Chandu Lal and Sajjan Singh respondents presented an application to the Minister for the provision of a path through a part of the land of the petitioners to enable them to take a tractor and trailer to their own land by short direct route, it being necessary for them otherwise to take their tractor and trailer by one or other of two roundabout routes which were interrupted by a number of bunds. It was urged that this would be in the interest of the Grow More Food Campaign The matter was referred by the Minister to the Director, Consolidation of Holdings, for disposal under Section 42 of the Act and the latter caused the parties to appear before him at Gurgaon on the 15th of September, 1958 when the impugned order was passed extending an already existing path up to the boundary of the village and at the same time compensating Makhan Lal for the land of which he was being deprived in order to provide the path by giving him an equivalent amount of land from the western side of a field in the plot of Onkar Singh respondent.

3. The learned Single Judge accepted the contention of the petitioners based on the wording of Section 42 which, as it stood at that time reads :-

"The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed 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......."

The contention was that the repartition had taken place without objections and that repartition itself was not an order which could be revised under Section 42 of the Act and the learned Single Judge in the circumstances quashed the order as being without jurisdiction.

4. This decision, however, was given in October, 1959 and since then Section 12 has been retrospectively amended by Punjab Act 27 of 1960 and it now reads -

"The State Government may at any time for the purpose of satisfying itself as to the legality or propriety 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......"

5. The amended provisions of Section 42 have been considered by a Full Bench in the Director, Consolidation of Holdings, Jullundur and another v. Johri Mal, 1961 P.L.R. 93, and the majority, Dulat and P.C. Pandit, JJ. (Tek Chand, J. dissenting,) held that Section 36 of the Act does not touch the power of the State Government conferred on it by Section 42 of the Act, for it is only when the authority confirming a scheme decides to vary or revoke it that recourse had to be had to Section 36, while the power of the State Government under Section 42 is wholly independent of the power of the authority confirming the scheme, and the only limitation prescribed in Section 42, as contained in the proviso, is that before the State Government makes any order the parties interested in the matter are given notice to appear and opportunity to be heard. There is therefore no force in the contention that a scheme of consolidation ca