Civil Writ Petition challenging orders in land consolidation proceedings. Petitioner alleged lack of opportunity of hearing and challenged orders passed by the Additional Director. Court found no injustice and dismissed the writ petition due to proper adjudication of the petitioner's share.
Writ petition is dismissed.
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CIVIL WRIT PETITION NO.5178 OF 1983 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: FEBRUARY 17, 2009
Sudershan Kumar
.....Petitioner
VERSUS
Additional Director, Consolidation of Holdings, Punjab, Chandigarh and others.
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
PRESENT:
Mr. Sunil Garg, Advocate, for the petitioner.
None for respondent Nos.1 and 2.
Mr. N. C. Kinra, Advocate, for respondent Nos.3 to 5.
RANJIT SINGH, J. (ORAL)
The petitioner primarily is aggrieved against the order dated 30.12.1982, Annexure P-5, through he has also impugned the orders dated 28.10.1982 and 10.3.1981 annexed with the petition as Annexures P-4 and P-2 respectively.
The facts, in brief, are that the consolidation operation in
the village was finalised in the year 1970. The parties were allotted Taks, as per scheme. Lachhman Dass, who was father of the
CIVIL WRIT PETITION NO.5178 OF 1983 :{ 2 }:
petitioner, filed objections under Section 21(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, “the Act”). These objections were allowed and parties to the writ petition were settled in their respective holdings allotted to them.
Girdhari Lal, respondent No.3, filed an appeal before the Settlement Officer on 15.2.1972. This appeal was partly accepted. Against this, an appeal under Section 21(iv) of the Act was filed but was dismissed by respondent No.2. The respondents accordingly filed a revision petition under Section 42 of the Act. This petition was allowed on 13.2.1974 and the order passed by respondent No.2 was set-aside. The case was remanded back to respondent No.2 for deciding the matter afresh. The order in this regard is annexed with the petition as Annexure P-1. Certain observations were recorded in the order, Annexure P-1, while remanding the case back for decision by respondent No.2.
The disputed land was stated to be located in the reserved block, which, according to the Scheme, was given to the person in possession at the time of consolidation. In Kharif 1964, field No.1398 was shown in cultivating possession of Parkash Ram but in Rabi 1965, the name of Brij Lal was also added. Subsequently, all the four brothers, namely, Brij Lal, Tara Chand, Parkash Ram and Lachhman Dass have been given land in Field Nos.897 and 898 to the exclusion of Girdhari Lal, respondent No.3 who was also share holder in old Field No.1398. The petitioner and others, however, had contended that respondent No.3 (Girdhari Lal) had no possession over old Field No.1398 and so was rightly not
CIVIL WRIT PETITION NO.5178 OF 1983 :{ 3 }:
given any area in new Field Nos.897 and 898 carved out of old Field No.1398. It is also submitted that they had constructed their buildings in these fields, which were in their possession. Paths in the reserve area were to be given at the cost of right holders. Respondent No.3, thus, objected that in lieu of 5 marlas area withdrawn from them for the purpose of path in Field Nos.897 and 898, has wrongly been given in Field Nos.1171 and 1172, which are paths. Since deductions for the path had already been made from him, so it was contended that he was deprived of about 5 marlas of valuable land. Finding that the Consolidation Officer has not dealt with in details all these contentions, the case was remanded.
Thereafter respondent No.2 decided the appeal under Section 21(iv) of the Act and accepted the same and made certain amendments vide his order dated 10.3.1981. The petitioner made a grievance against this order on the ground that his father Lachhman Dass was residing at Agra and was neither served a notice nor arrayed as a party in the proceedings before respondent No.2. It was accordingly submitted that the order, Annexure P-2, had been passed without affording any opportunity of hearing to the father of the petitioner. Reference is made to the contentions raised by Girdhari Lal, respondent No.3, who was represented by his counsel. He had stated that Khasra No.1398 was owned by all the five cosharers but was not properly partitioned. He accordingly had demanded 1/5th share in the same and had laid claim on the road side, which was more valuable. The petitioner would submit that his (respondent No.3) claim was rightly rejected earlier on the ground that he was proved to be in possession of Killa No.1460 only. It is
CIVIL WRIT PETITION NO.5178 OF 1983 :{ 4 }:
accordingly submitted that respondent No.2 has illegally and erroneously allowed respondent No.3 1 kanal land on the road side. The grievance accordingly was made that the amendments, which have now been made, would affect the co-owners, who are in peaceful possession of the land since 1970 and have built their houses thereon. He accordingly challenged order, Annexure P-2, on the ground that he had not been afforded opportunity of hearing. Order, Annexure P-2, was, thus, set-aside and the case was remanded back for hearing the appeal de novo by giving opportunity of hearing to the necessary parties. Copy of this order is annexed with the petition as Annexure P-3.
Now, Sushil Kumar, challenged the order, Annexure P-3 on the ground that he was not heard while passing order (Annexure P-3). It was found that respondent, Sushil Kumar, was intentionally evading service to harass the petitioner. Still, Respondent No.1 setaside his own order, (Annexure P-3), and directed that the original petition be heard on 23.11.1982 at Sunam. This order dated 28.10.1982 is annexed with the petition as Annexure P-4.
During this time, Lachhman Dass, father of the petitioner, died and is now represented by the present petitioner, Sudarshan Kumar. He now makes a grievance that while passing order, Annexure P-4, he was not heard. He would say that order, Annexure P-3, had been validly and legally passed and accordingly said respondent, while passing the order, could not sit in appeal or review over his own judgment to quash the same and pass order, Annexure P-4. However, in the meantime, respondent No.1 once again took up the petition filed on behalf of father of the petitioner and decided the
CIVIL WRIT PETITION NO.5178 OF 1983 :{ 5 }:
same on 30.12.1982. Copy of the order is Annexure P-5. This order is now challenged by the petitioner through the present writ petition. It is in this background that the petitioner has raised a grievance against orders, Annexures P-2, P-4 and P-5.
Notice of motion was issued. Reply has been filed.
Apart from other preliminary objections, it is urged that no grave or manifest injustice has been caused to the petitioner as he owned 1/5th share in Field No.1398, which is the bone of contention. The petitioner statedly was residing at Agra for the last 40 years and so was not in possession of this field number and hence, 1/5th share due to him was given to him according to his entitlement. It is, thus, pleaded that no case for exercise of extra ordinary jurisdiction by this Court is made out.
As can be seen from the reply, there is not much dispute so far as the facts are concerned. It is pointed out that Field Nos.1398 and 1400 were of reserved category. The area of 1 kanal 7 marlas due to the answering respondent was given less by the Consolidation Officer. Therefore, they filed a revision under Section 42 of the Act. The case was accordingly remanded, as seen from order, Annexure P-1. Even after passing of order, Annexure P-2, the answering respondents were still having deficiency of 3 marlas. They, however, chose not to file the revision despite this fact as the dispute is between the brothers. It is in this background that the respondents would pray that the writ petition deserves to be dismissed.
I have heard learned counsel for the parties.
Initially, the appeal was decided vide order, Annexure P-
CIVIL WRIT PETITION NO.5178 OF 1983 :{ 6 }:
that this was passed at his back and so his interest was adversely affected. Finding the grievance of the petitioner to be well founded, order Annexure P-2 was set-aside and the case was remanded with a direction that the Appellate Authority should consider the same de novo by giving real opportunity of hearing to the necessary parties. Subsequently, one Sushil Kumar, who was respondent, challenged order, Annexure P-3, whereby order, Annexure P-2, was set-aside. He also made a similar grievance that while passing order, Annexure P-3, he was not afforded opportunity of hearing. Finding that Sushil Kumar was not heard at the time of passing order, Annexure P-3, the same was quashed and the original case was fixed for hearing on 23.11.1982 at Sunam. It is in this background that order, Annexure P-5, has been passed.
From the facts as narrated, it is quite clear that while passing the impugned order, Annexure P-5, all the parties were afforded opportunity of hearing. Lachhman Dass, who is father of the petitioner, was represented through his counsel, when the impugned order, Annexure P-5, was made. His counsel, however, pleaded that the original order dated 10.3.1981 was passed without hearing him and hence, it should be quashed and hearing be given de novo. It appears that the petitioner was not well advised to make this prayer at the time of passing order, Annexure P-5. The case was set down for hearing on merits and counsel for the petitioner was required to make submissions on merits. This was the plea raised on behalf of the respondents, who submitted that the petitioner had been given his due share by the Assistant Director through order Annexure P-2. It was accordingly pleaded that there is no illegality in the order and
CIVIL WRIT PETITION NO.5178 OF 1983 :{ 7 }:
hence, the impugned order may continue. Submission of the respondents is specifically noted that the petitioner is being given opportunity of hearing now and would be at liberty to plead his case in a best manner as he can choose. Having considered the entire matter, the Additional Director, Chandigarh, found that the order, Annexure P-2, did not suffer from any ambiguity or illegality. He noticed that Lachhman Dass (father of the petitioner) has been given his due share. Counsel for the petitioner could not point out any infirmity in the order. The counsel also could not point out as to what wrong has resulted to him, necessitating quashing of the impugned order, Annexure P-2. The Additional Director rightly noticed that dispute was amongst the real brothers and that the petitioner appears to have adopted a revengeful attitude. He accordingly did not find any justification to interfere in the impugned order. From the reply filed, it is seen that the petitioner was given 1/5th share, which is his rightful due. It could not be pointed out before me if any prejudice has been caused to the petitioner or his share is reduced. It was also rightly observed that the petitioner in fact was not in actual possession as he was staying at Agra. In a way, it may give an indication that he was basically contesting this petition because of some grouse with his brother-respondent. I do not find any reason to interfere in the impugned orders in exercise of writ jurisdiction.
The writ petition is accordingly dismissed.
( RANJIT SINGH ) JUDGE
February 17,2009 khurmi
3 issues framed by the court
Whether the High Court should interfere in the impugned orders under the consolidation act given lack of opportunity of hearing.
Whether any grave or manifest injustice was caused to the petitioner that warrants exercise of writ jurisdiction.
Whether the petitioner's share in the consolidated land was correctly awarded to him.
3 provisions across 1 enactments
Sudershan Kumar
Additional Director, Consolidation of Holdings, Punjab, Chandigarh and others
Ranjit Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
