Ramu alias Ram Kishan and Another vs The Director Consolidation and Others

V.K. Bali, J.—This order will dispose of two connected civil writ petition Nos. 11812 of 1993 and 13881 of 1993 as common questions of law and fact are involved therein. The facts have, however, been extracted from Civil Writ Petition No. 11812 of 1993 (Ramu @ Ram Kishan and Anr. v. The Director, Consolidation and Ors.)

Ramu @ Ram Kishan and another through present petition filed by them under Articles 226/227 of the Constitution of India, seek writ in the nature of certiorari so as to quash order dated August 26, 1993, (Annexure P-7) passed by the Director Consolidation, Haryana vide which it was ordered that passage should be given to the owners of every field so that they could do their agricultural occupation easily. However, before giving the passage, spot was ordered to be inspected and the case was remanded to the Settlement Officer (Consolidation), Rohtak with a direction to inspect the spot and after hearing the parties concerned, provide a passage to them. If any land of respondents , petitioners in the present case, was to come within the passage, the land-owner had to be compensated by providing proportionate land of the petitioners.

The facts, as have been detailed in the petition, reveal that the parties to the litigation are residents of village Medawas, Tehsil & District Gurgaon. The consolidation in the said village took place in the year 1952-53. At that time no passage was given to any proprietor for his separate holding (Chak). This course was adopted as the proprietors of the village unanimously decided that they did not like to have passage to their respective fields and would rather prefer to use the boundary (DOLL) of their respective fields for ingress and outgress. In this regard decision was taken which was signed by some of the respectables of the village including Balwant Singh, father of Rishi Parkash and Nandan, who were related to respondent Nos. 5 to 7. A copy of the said decision taken in the year 1952-53 has been placed on the records of this case as Annexure P-1. All the proprietors of the village, thus, started using DOLLS of their respective fields as passage because no passage was separately carved out in the scheme of Consolidation. Respondent Nos. 3 to 10 filed an application u/s 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 (here-in-after to be referred to as the Act of 1948) before the Director Consolidation, Haryana with a prayer that they may be provided passage to their holding. This petition was filed on February 3, 1993. The Director Consolidation sent the matter to the Consolidation Officer, Gurgaon for ascertaining the entire state of affairs at the spot. In compliance with the directions issued by the Director, Consolidation, Consolidation Officer prepared his report dated May 4, 1993 and submitted it to the Director Consolidation. A copy of the said report has also been placed on the records as Annexure P-3. Relying upon the report aforesaid, the Director Consolidations accepted the petition filed by respondent Nos.3 to 10 u/s 42 of the Act of 1948 and remanded the case to the Settlement Officer, (Consolidation) ? Gurgaon with the direction as already mentioned in the earlier part of this judgment.

While assailing the impugned order, Annexure P-7, Mr. Ashok Aggarwal, learned Senior Advocate, appearing on behalf of petitioners, Vehemently contends that the reading of Petition u/s 42 of the Act of 1948 clearly makes it out a case of restoration of path which was erst-while used by the litigating parties. It is not a case of providing path under the scheme and, therefore, the Director, Consolidation lacked inherent jurisdiction in the matter. It is further contended by the learned counsel that under the scheme itself the proprietors of the village had agreed to use the boundary (DOLL) of their respective fields as passage for ingress and outgress and that being so it could not be said that there was no provision of passage made out in the consolidation scheme even though no separate passage was provided to respective fields of various proprietors. For the proposition that demolition of passage could be restored only through civil Court, learned counsel relies upon decision of this Court in Mehar Chand v. State of Haryana & Ors 1971 PLJ 562.

Mr. Sihota, learned counsel for respondent Nos. 3 to 10, however, seriously opposes the two fold contention, noticed above, raised by Mr. Aggarwal and contends that the Consolidation Authorities, particularly, the Director Consolidation, Haryana has inherent powers to provide a path to respective fields of the proprietors for which there is no limitation also involved. For his aforesaid contention, learned counsel relies upon Bikhan and Ors. v. The Punjab State & Ors (1963) 65 PLR 368 (F.B.), Shaikh Piru Bux (dead) and Others Vs. Kalandi Pati and Others, and the The Director of Consolidation of Holdings, Jullundur and Another Vs. Johri Mall Karori Mall, .

After hearing learned counsel for the parties and going through the records of the case, this Court is of the considered view that the order, Annexure P-7, passed by the Director Consolidation, Haryana deserves to be set-aside. The consolidation proceedings in village Medawas took place in the year 1952-53 and no passage was given to the proprietors for their individual fields. May be, that this was not the position with regard to all the proprietors of the village but in so far as petitioners and respondent Nos. 3 to 10 are concerned, it is proved that they had no separate path provided to their respective fields. This fact is duly proved from Annexure P-1, authenticity of which has not been even remotely disputed by the respondent-State. It is true that insofar as respondent Nos. 3 to 10 are concerned, they have taken various objections with regard to Annexure P-1 but it is the stand of the State which would be more relevant for returning a finding as to whether Annexure P-1 did come in existence and, as referred to above, respondent-State has candidly admitted the existence of Annexure P-1 in the written statement filed by it. Mr. Aggarwal has also shown me the consolidation scheme that came into being at the time of consolidation proceedings way back in the year 1952. The scheme while dealing with the paths mentions that the paths and other places of common benefits would continue as before and would not be closed. At this stage even if the petition filed by respondent Nos. 3 to 10 u/s 42 of the Act of 1948 is also looked at, it will reveal that it is pleaded therein that "at the time of consolidation in the village no path was provided to the KURRAH of petitioners. It is further pleaded that there was a thorough -fare in the North but no passage was provided to the Kurrah of petitioners. In fact, the petitioners mutually left the land in between their Kurrahs so as to use it as passage and the same was still in existence on the spot. However, the respondents have become dishonest and inimical towards the petitioners due to local party politics and they were threatening to block the said passage by way of raising construction the dolls of the fields. The utility of the agricultural land was valished due to non-provision of the passage." From the facts as have been detailed above. It is thus proved on records of the case that it was not a matter of providing passage to a field which provision was not got in the consolidation scheme. On the other hand, the passage as was in existence, was left for use of respective land- holders and, in particular petitioners and respondent Nos. 3 to 10. It was, thus, a case for restoration of path that might have been closed down by petitioners. This Court in Mehar Chand v. State of Haryana and Ors. 1971 PLJ 562 (supra) held that "from the bare reading of Section 42, I have no hesitation in holding that the Deputy Commissioner had no jurisdiction to order removal of encroachment on the path in exercise of his owners under that Section." It requires to be mentioned that the Deputy Commissioner in that case was exercising the powers u/s 42 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, 1967. 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 be absolutely right in contenting that if no path is provided under the consolidation scheme, then the Authorities constituted under the Act of 1948 would 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 for getting the existing path restored if the same had been blocked. It shall even now be open to respondent Nos. 3 to 10 to agitate the matter before the Civil Court. In as much it is the case of petitioners themselves that path was in existence, the Civil Court while dealing with the matter would decide the controversy in the light of the said admission.

In view of the discussion made above, these petitions succeed and are allowed. Order, Annexure P-7, is set-aside. Parties are, however, left to bear their own costs.