Ram Phool vs Director, Consolidation, Haryana

G.C. Garg, J.

Challenge in this writ petition under Articles 226 and 227 of the Constitution of India is to the order dated 24.2.1997, Annexure P6 passed by the Director Consolidation, Haryana. The petitioner and their brother inherited land measuring 40 kanals and 2 marlas situated in village Mukimpur, Tehsil and District Sonepat. They purchased the adjoining land measuring about 38 kanals from Jage Ram and Jot Ram sons of Mam Chand. A rasta bearing No. 77 was provided during consolidation to the land owned by Jage Ram and Jot Ram from the boundary lines of Killa Nos. 39//1 and 2 and Killa Nos. 39//9 and 10. Case of the petitioners is that the said Rasta was not given a turn so as to enable Jage Ram and Jot Ram to enter their fields. However, they continued to use that passage being the only passage for going to their fields without seeking extension of the path by about two Karams. After the purchase of the land, they moved an application for extending the path by two Karams in Killa No. 39//1/1 so as to enable the petitioners to have access to their holdings through that path. This application was allowed by the Director Consolidation by order dated 28.10.1994 and the matter was remanded to the Consolidation Officer with a direction to consider the case for extending the path. The Consolidation Officer after hearing learned counsel for the parties and after making spot inspection, extended path No. 77 and Chandgi Ram father of respondents 2 to 6 was compensated by giving equivalent land from the land of the petitioners. Appeal against the order of the Consolidation Officer was dismissed by the Settlement Officer, Rohtak by order dated 2.7.1996. Aggrieved by the orders of the Consolidation Officer and the Settlement Officer, Chandgi filed appeal before the Director Consolidation, Haryana which was allowed by order dated 24.2.1997, and the order passed by the Settlement Officer was set aside. Hence this writ petition.

Learned counsel for the petitioners submitted that the learned Director Consolidation allowed the appeal primarily on two grounds, namely, (i) that the respondents were given a passage to reach their fields at the time of consolidation, and (ii) that a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short `the Act'') (being case No. 211 of 1982) moved by the brothers of the petitioner was earlier dismissed on 23.4.1982 and they concealed this fact while filing the second application and thus the application should have been dismissed on the principle of res judicata.

Learned counsel for the petitioner submitted that both the grounds on which the appeal was allowed by the Director do not stand scrutiny. Learned counsel by reference to the application moved before the Director, Annexure P2 pointed out that it was duly disclosed in the application that on an earlier occasion, a petition was moved and the same was rejected by the Addl. Director on 1.4.1982 without affording any opportunity to the petitioners. Learned counsel further submitted that no passage whatsoever was provided to the Kurra of the predecessors of the petitioners in respect of the land which is the subject matter of the dispute.

Learned counsel appearing on behalf of the private respondents could not point out by reference to any material on record that a passage was provided to the land in dispute of Jage Ram etc. during consolidation from whom the petitioners purchased the land in dispute. Learned counsel also could not dispute that the factum of disposal of the earlier petition was disclosed while moving application seeking relief for providing a path.

After hearing learned counsel for the parties and on a consideration of the matter, we are of the opinion that the two grounds on which the petition was allowed vide order Annexure P6 do not stand scrutiny. The petitioners moved the application under Section 42 of the Act in the year 1993 and duly disclosed therein that on an earlier occasion, an application was moved which was rejected by the Addl. Director on 1.4.1982 but without giving any opportunity. The private respondents contested that application and in their presence the petition was allowed and the matter was remanded to the Consolidation Officer for his decision. The order of the Addl. Director became final as the private respondents did not challenge the same, now it is too late in the day for them to challenge that order especially after the matter was gone into by the Consolidation Officer and the Settlement Officer who on a consideration of the matter, provided a path to the land of the petitioners which they had purchased from Jage Ram etc. after consolidation. It was also not pointed out to either of the two officers that there exists a passage for the petitioners to reach their land which they purchased from Jage Ram etc. or that another path had been provided by the Consolidation Authorities to him during consolidation proceedings. In that view of the matter, we are of the opinion that the order under challenge i.e. Annexure P6 cannot be sustained and the same is set aside. The matter is remitted to the Director Consolidation, Haryana to dispose it of afresh in accordance with law. The parties through their counsel are directed to appear before the Director Consolidation, Haryana on 28.11.1997.

The writ petition is disposed of in the above terms.