Harjit Singh and Others vs State and Another

T.H.B. Chalapathi, J.—This writ petition is filed to quash the order of the Additional Director, Consolidation, Punjab, Mohali dated 15.11.1994 vide Annexure P-3.

Respondents 2 to 5 filed an application u/s 42 of the Consolidation Act, 1948 for providing a passage to their land in Killa Nos. 24/11 and 10 through Killa No. 24/112/1. On that application, the Additional Director of Consolidation by the impugned order directed a path to be provided on the southern side of Killa No. 24/110. He rejected the request of the respondents to provide a path from Kill No. 24/112/1 on the ground that there is a constructed small room in the said Killa Number and that there was no construction in Killa No. 24/111. Accordingly, he ordered for providing a path from Killa No. 24/111 belonging to the petitioners in this writ petition.

The petitioners in this contended that the consolidation proceedings took place more than 30 years and respondent No. 2 purchased the land only in the year 1981 and prior the original owner of the respondent has been using the path and therefore, the application u/s 42 of the Consolidation Act of 1948 has no application and the Additional Director, Consolidation, has no jurisdiction to provide a path. Therefore, the order of the Additional Director, Consolidation, is liable to be set aside.

Heard arguments of the learned counsel for the parties and perused the record.

There is no dispute that the Consolidation proceedings have become final more than 30 years ago. Respondent No. 2 filed an application before the Additional Director, Consolidation, Punjab, for providing a path only in the year 1994. He never asked for providing a path from Killa No. 24/111 which belongs to the writ petitioners. In fact, respondent No. l wanted a path to be provided across Killa Nos. 24/112/1 and 24/19. Respondent No. 2 is claiming a right of passage to his land across the land of the petitioners and respondents No.3 to 5.

On a close reading of section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948,I am of the opinion that the application under said Section is not maintainable for providing a fresh passage or path to the land of the second respondent. Once the consolidation scheme has been framed and implemented, any change in the same cannot be made u/s 42 of the Act except for the matters specifically provided therein. In Harbhajan Singh v. The State of Punjab etc. 1970 PLJ 420, it has been held as follows:-

"The scheme, as averred in the written statement, was confirmed u/s 20(3) of the Act by the settlement Officer on the 21st. December, 1959 in the general gathering of the village after deciding on merits all the objections received against the publication of the scheme. The petitioner or any other right-holder did not file any objection against this provision of the scheme. As such the petitioner cannot be permitted to challenge this provision of the scheme after such an inordinate delay in this writ petition which was filed in the year 1960."

In Amur Singh and Ors. v. The Additional Director, Consolidation of Holdings, Haryana 1985(1) LLR 43 it has been held as follows:-

"Before me, it is not disputed by the Learned Counsel for respondent No. 2 that at the time of repartition during 1961-62 a passage or path had been provided to the land belonging to her father. In the face of this, the requirement of the scheme of consolidation which indisputably lays down that a passage has to be provided to the Kurrah of each every land owner stood fully satisfied and respondent No. 2 was not entitled to ask for any more passage under any circumstances. The mere fact that she sold part of the land she acquired from her father alongwith the passage meant for that land docs not either legally or morally entitle her to ask for any more passage or path to her remaining land. In view of the fact that the relevant provision of the scheme of consolidation stood satisfied with the allotment of the earlier passage, the Additional Director had no jurisdiction to grant any more passage or path to the remaining land of respondent No. 2 more particularly after lapse of about 22 years of the re-partition."

In Ramu alias Ram Kishan and Another Vs. The Director Consolidation and Others, it has been held as follows:-

"This court in Mahar Chand v. State of Haryana and Ors. 1971 PLJ 562 (supra) held that "from bare reading of Section 48 of the Act of 1948 the facts of the case aforesaid reveal that there was no dispute that path No. 57 was provided in the scheme of consolidation prepared under the Act. It was also an admitted case that about the alleged encroachment on path No. 57 respondent No. 2 and some others filed a complaint u/s 133 of the Code of Criminal Procedure and that the proceedings in that complaint were stayed by the Sub Divisional Magistrate vide order dated January 19, 1.967. Instead of getting the matter settled from the civil court the respondents of the said case had filed an application u/s 42 of the Act of 1948 on which the impugned order was passed by the Deputy Commissioner. It was in the circumstances aforesaid that this Court had held as has been extracted above. Mr. Sihota, learned Counsel, may absolutely be right in contending that if no path is provided under the consolidation scheme then the authorities constituted under the Act of 1948 always have jurisdiction to provide a path and that being so there is no limitation whatsoever but the facts of the present case reveal that path was actually provided in the scheme, even though it was not with regard to respective holdings of the parties. In these circumstances there was no choice for the respondent Nos.3 to 10, but for to have knocked the doors of the civil court getting the existing path rescued if the same had been blocked."

In view of the above position, I am of the opinion that the order of the Additional Director, Consolidation, Punjab Mohali dated 15.11.1994 (Annexure P-3) cannot be sustained. I, accordingly, allow the writ petition and quash the impugned order of the Additional Director dated 15.11.1994. However, there will be no order as to costs.