Allowed

Hawa Singh v. State of Haryana & Ors.

Punjab & Haryana HC11 Jul 2013CWP/10396/2011

Case brief

AI extract

What is this about?

Writ petition allowed to quash the order granting a passage through petitioner's land to subsequent purchasers. Court held that subsequent purchasers cannot invoke Section 42 of the Consolidation Act for mistakes occurring after the proceedings concluded. Relief granted to liberty private respondents to claim passage from original owner.

What did the court decide?

Order dated 15.12.2010 passed by Commissioner, Hisar Division set aside. Liberty given to claim relief from original owner.

Hawa Singh Vs State of Haryana & Ors. — Land Acquisition | Punjab & Haryana HC (2013)

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Rajan Kumar 2013.08.29 15:56 I am the author of this[1] document Chandigarh

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CWP No.10396 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No.10396 of 2011 Date of Decision: 11.07.2013

Hawa Singh

... Petitioner

Versus

State of Haryana and others

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... Respondents

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CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE G.S. SANDHAWALIA

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Present:Mr. Vikram Singh, Advocate for the petitioner.

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Mr. D. Khanna, Addl. AG, Haryana, for respondent No.1.

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None for respondents No.2 to 11.

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JASBIR SINGH, J. (Oral)

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Petitioner has filed this writ petition against an order dated 15.12.2010 vide which a passage has been given to the private respondents through land owned by him. As per admitted facts, consolidation in the village took place in the year 1953-54. Private respondents filed an application under Section 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 (for short, 'the Act') by stating that their land falling in khasra No.103//19/2, 20, 23/1, 23/2, 109//2/2 was not provided with an access. Prayer was made to give a passage from the side of minor canal,

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[2]

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CWP No.10396 of 2011

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which was running by the side of the land owned by the petitioner shown in purple colour in the site plan (Annexure P- 6).

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It is an admitted fact that the private respondents purchased that piece of land in the year 1996 from one Dalbir, a co-sharer of Kapuria.

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Before dealing with the issue further, it is necessary to look into the provision of Section 42 of the Act, which reads thus:

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“ 42. The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of [any order passed, scheme prepared or confirmed or repartition made by any officer under this Act], call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit:

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Provided that [no order, scheme or repartition shall be varied] or reversed without giving the parties interested notice to appear and opportunity to be heard [except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration].”

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As per this provision, the State Government has a power to look into legality or propriety of any order passed, scheme prepared or confirmed or repartition made under the abovesaid Act. It makes very clear that if at the time of

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CWP No.10396 of 2011

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[3]

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consolidation proceedings some mistake has kept into, power is given to correct that mistake either suo moto or on an application filed by any right-holder.

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In this case, it is an admitted fact that respondents No.2 to 5 were not the owners to whom, land was allotted at the time when consolidation proceedings were conducted. They are the subsequent purchasers from one Dalbir. There is nothing on record to show that to the land allotted to Dalbir, at the time of consolidation proceeding, no passage was provided. As per law a subsequent purchaser has no right to invoke provisions of Section 42 of the Act in cases, where on account of changes, after conclusion of the consolidation proceeding, some mistake has occurred. It was so said by a Single Bench of this Court in case titled Gurcharan Singh & Others v. State of Punjab & Another, 2005(4) RCR 39 where the situation was similar. The relevant portion of the order is as under:

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“... 3. This Court feels that contention of the counsel for the petitioners, that once during consolidation proceedings, at the time of effecting re-partition, passage was provided to the original landowner, subsequent purchaser is not entitled to any passage, is correct. It is evident from record that at the time of consolidation proceedings, 104 Kanals 19 Marlas of land was allotted to Dalip Singh etc. and passage was provided to the same, as such, respondent No.2 was not a right-holder,

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CWP No.10396 of 2011

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[4]

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qua the land he purchased in 1974. Under the circumstances, he can claim passage, only from the owner from whom he has purchased that land. Under Section 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948, jurisdiction of respondent No.1 is very limited and interference can be made only if there was any defect in the consolidation scheme, implementation of repartition or any other order passed. Facts of the case are such that no such eventuality has arisen for respondent No.1 to interfere in the present case.

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4. Counsel for the petitioners has relied on the ratio of judgment in Banarsi Dass and others v. Director, Consolidation of Holdings, Haryana and others, 1995(3) RRR 357 (P&H) : 1995 PLJ 314 , wherein this Court held as under:

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“... Naturally, there was a change of landowners after the consolidation when the original landowner sold the land to some other parties. In that situation, if any dispute arises about the title of the land or other rights in the land and a question arises about the providing of the path to the land of a subsequent vendee from an original owner, then it falls within the jurisdiction of Revenue Authorities or by the concerned civil Courts and certainly not by the Director, Consolidation under

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CWP No.10396 of 2011

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[5]

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Section 42 of the Act and that also on the application of a stranger who became interested in the property on purchase from the original landowner after a passage of 25 years or so.....”

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5. To the same effect is the ratio of judgment in Jaswinder Kaur and others v. Additional Director, Consolidation and others, 2003(3) RCR (Civil) 131 (P&H).

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In view of the facts mentioned above, this writ petition is allowed. Order under challenge is quashed, leaving it open to respondent No.2 to claim passage, if any, from the original owner from whom he purchased the land.”

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It is on record that at the time of consolidation proceedings, no passage was granted to a joint block of land owned by Kapuria and Dalbir (from whom the private respondents have purchased the land in the year 1996).

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Sh. Kapuria filed an application under Section 42 of the Act with a prayer that passage be provided to his joint land. The application was allowed and a passage was provided through the land falling in khasra Nos.109/10/2, 10/1, 1/1 and 103/21. In lieu thereof, compensation was given to the right holders from whom the land was retrieved to provide the above passage. Thereafter, it appears that some family partition took place between Kapuria and Dalbir from whom the land was purchased by the private respondents. If due to

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CWP No.10396 of 2011

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[6]

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partition of joint khewat, passage was not left upto the land owned by the respondents, this mistake cannot be corrected by invoking the provisions of Section 42 of the Act.

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Otherwise also, this Court is of the opinion that the passage now demanded by the petitioner, if given, it will divide land owned by some of the private respondents into two parts. The said action will be against the principles of consolidation as it will make cultivation of the land difficult for agricultural purposes.

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In view of the facts mentioned above, the writ petition is allowed. Order dated 15.12.20100 passed by the Commissioner, Hisar Division, Hisar is set aside. Liberty will remain with the private respondents to claim relief for grant of passage, from land of the original owner or by involving any other legal remedy.

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(JASBIR SINGH) JUDGE

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(G.S. SANDHAWALIA) JUDGE

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11^th July, 2013 Rajan

Hawa Singh v. State of Haryana & Ors.

Case brief

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Hawa Singh v. State of Haryana & Ors.

Case brief

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