The court emphasized the limitations of the authority under Section 42 of the Consolidation Act 1948 and highlighted the distinction between 'Shamilat Deh' and 'Jumla Mushtarka Malkan' in the context of the 1961 Act and the 1976 Act.

JUDGMENT :

SURESHWAR THAKUR, J.

1. Despite valid service being caused upon the private respondents, neither they have appeared in person, nor through any validly engaged counsel. Therefore, they are ordered to be proceeded against ex-parte.

2. Through the instant petition, a challenge is made to Annexure P-2, whereby the Director Consolidation of Holdings, Punjab, Jalandhar, while exercising jurisdiction under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter for short called as the ‘Consolidation Act 1948’) after making interference with the finalized consolidation scheme, rather proceeded to re-partition or re-distribute the disputed lands, to the petitioners, in the said petition, who are arrayed as respondents in the instant writ petition.

3. The jurisdiction to re-distribute or re-partition the disputed lands amongst the estate holders concerned, and that too, after finalizations being made to the consolidation scheme, by the empowered revenue officer concerned, does apparently, cause breach to the mandate recorded by this Court in case titled as Parkash Singh and Others vs. Joint Development Commissioner, Punjab and Others, 2014 (2) RCR (Civil) 721. The relevant paragraphs of the verdict recorded by this Court in Parkash Singh case (supra), becomes extracted hereafter, whereins, there is a complete interdiction against the authority exercising jurisdiction under Section 42 of the ‘Consolidation Act, 1948’ to after the finalization of the consolidation scheme, by the consolidation officer rather re-distribute or re-partition, the disputed lands amongst the estate holders concerned. Contrarily, it is mandated therein that the remedy to ask for redistribution or re-partition of the disputed lands amongst the estate holders concerned, after the completion of the finalized consolidation scheme, is through the makings of a challenge to the purported untenable allotments made either to the estate holders or to the Gram Panchayat concerned, rather through a declaratory suit being filed, before the jurisdictionally competent Civil Court concerned:

46. We, therefore, have no hesitation in recording that it is beyond debate that, if a question arises, before an officer exercising power under the Consolidation Act, regarding any right, title or interest in ‘Shamilat Deh’ ‘vested’ or deemed to have vested in a Gram Panchayat, a Consolidation Officer, the State or its delegate exercising plenary power under Section 42 of the Act, are not empowered, while examining the correctness of any scheme prepared during consolidation or order passed thereunder to record a finding on such a question of title or to hold that land is or is not ‘Shamilat Deh’ and as a consequence whether any right, title or interest vests or does not vest in the Gram Panchayat. The only authority empowered to answer such a question is the Collector, exercising power under Section 11 of the 1961 Act. As a necessary corollary an order passed under Section 42 of the Consolidation Act, holding that the land vests or does not vest in a Gram Panchayat would be illegal and nonest for assumption of jurisdiction where there is none, as opposed to a mere erroneous exercise of jurisdiction or may, at best be construed to be an order passed by a tribunal of limited jurisdiction, in the exercise of its limited powers to correct errors in the scheme or orders passed during consolidation and nothing more. The latter conclusion would require a degree of explanation.

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57. ‘The 1961 Act was enacted, so as to consolidate, amend the law regulating rights in ‘Shamilat Deh’ and ‘Abadi Deh’. The 1961 Act is confined to rights in ‘Shamilat Deh’ and ‘Abadi Deh’. Section 2(g) of the 1961 Act defines ‘Shamilat Deh’ by including land described in Section 2(g)(1 to 5) and excluding land described in Section 2(g)(i) to (ix) in ‘Shamilat Deh’. Section 2(g) of the 1961 Act (reproduced in the earlier part of the judgment) does not declare th