Mehar Din vs The State of Haryana and Another

V.K. Bali, J.—Mehar Din through present petition filed by him under Articles 226/227 of the Constitution of India, seeks a writ in the nature of certiorari so as to quash order dated May 22,1992 passed by the Deputy Director, Consolidation, Haryana.

The facts, of the case reveal that petitioner is a small land-owner. The consolidation proceedings took place in the village about thirty years back. Respondent No. 2 is stated to be a big land-owner and having a big family. He is having land, it is stated, on three sides of the land belonging to petitioner. Respondent No. 2, it is stated, was having joint khewat till recent and all the co-owners were using their own path so as to go to their fields. Respondent No. 2 purchased some more land from one Baru Ram, to whom land was allotted after he had migrated from the areas now forming part of Pakistan. After the land was purchased by respondent No. 2 from Baru Ram, he filed application u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (here-in-after referred to as the Act of 1948). So, the matter came up for adjudication before the Deputy Director, Consolidation, Haryana, who passed the impugned order, Annexure P-5. It is pleaded and so argued by learned o counsel appearing for the petitioner that order, Annexure P5, is illegal and the consolidation proceedings in the village had been completed thirty years back and every land-owner was given path to reach to his land and that being so, it was not within the jurisdiction of the Director, Consolidation to give path to the respondent after a period of thirty years. It is also argued by learned counsel for the petitioner that there is already a path in existence from which the land of petitioner was easily accessible.

The cause of petitioner has been opposed and in the written statement that has been filed on behalf of respondent No. 2, it has been pleaded that he is a very small land-owner and it is wrong that he was having land on three sides of the land owned by petitioner. His share in the land as shown in Annexure P-2 alongwith one Santa Singh son of Puran Singh is only ]/6th share and all the persons, who have been mentioned in Annexure P-2, are cultivating their land separately for the last so many years by a private partition. Further, it is pleaded that the land which represents the share of respondents, does not adjoin the land owned by petitioner. The land shown in Annexure P-3, it is pleaded, was purchased by him from one Baru Ram son of Punjaba Ram vide registered sale deed dated July 3, 1981. There was no path for him to go to his land described in Annexure P-3, jamabandi for the year 1986-87. No path was given to his vendor even during the consolidation proceedings. It is in these circumstances that he had no choice but for to make an application u/s 42 of the Act, 1948 for getting path to go to his land.

After hearing learned counsel for the parties and going through the records of the case, I am of the considered view that the points raised by learned counsel for the petitioner have no merit and, therefore, this writ must fail. The Director, Consolidation in the impugned order dated May 22, 1992 has clearly held that respondent No. 2 has no path to reach to his fields. Learned counsel for the parties have taken me through the records and in particular the AK-sajra. It does appear to me that respondent No. 2 did not have path to reach to his fields. However, this is a question of fact and cannot be disturbed by this Court in writ jurisdiction particularly when nothing such has been shown which might detract from a firm finding of fact recorded by the Director, Consolidation. Inso far as objection of petitioner with regard to delay in making the application u/s 42 of the Act is concerned, suffice it to say that the bar of limitation of six months is applicable only to orders and it does not apply to the proceedings in which the scheme prepared or confirmed or repartitioned, is challenged. The Supreme Court in Gram Panchayat of village Kanonda v. Director, Consolidation of Holdings and Ors. 1990 P.L.J. 213 (S.C.) held, "Rule 18 provides for limitation only in respect of an application under that section in a proceeding where an order was passed. There is the maximum expressio unius est exclusio altenus expression of one thing is the exclusion of another. Mention of one thing implies the exclusion of another. When certain persons or things are specified in a law and an intention to exclude all others from its operation may be inferred. When mention has been made only of ''orders.'' the inference would be that preparation or confirmation of scheme and repartition are excluded. Again, Expraecedentibus et consequentibus optima fit interpretatic the best interpretation is made from the context. As we have seen, while Sections 19 and 20 did not envisage passing of any order, Section 21 envisaged passing of orders. Section 42 deals with applications against orders, preparation or confirmation of Scheme and repartition. Rule 18 mentions only orders and hence by inference excludes ''preparation and confirmation of Scheme and repartition.'' We have accordingly no doubt in approving the Full Bench decision in Jagtar Singh v. Additional Director, Consolidation of Holdings (supra) (1984) 86 P.L.R. 364 (F.B)." The observations made by the Supreme Court, as extracted above, apply in case of providing of path all the more.

For the reasons stated above, this petition is dismissed. There shall, however be no order as to costs.