Dismissed

Amrik Singh v. Addl Director C/H etc.

Punjab & Haryana HC11 Feb 2013CWP/6726/1995

Case brief

AI extract

What is this about?

Writ petition filed to quash an order restoring the original path alignment in a land consolidation dispute. The Court dismissed the petition but directed authorities not to demolish the petitioner's residential structures, noting the lower order passed without serving all affected right holders.

What did the court decide?

Writ petition dismissed with a direction that no part of the petitioner's residential structure shall be demolished except for a small wall, kotha, and tubewell constructed during the pendency of proc

Amrik Singh Vs Addl Director C/H etc. — Land Acquisition | Punjab & Haryana HC (2013)

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Civil Writ Petition No.6726 of 1995 1

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Civil Writ Petition No.6726 of 1995 Date of Decision: 11.2.2013

Amrik Singh

..Petitioner

Versus

Additional Director Consolidation of Holdings, Punjab and others

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..Respondents

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CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MRS. JUSTICE REKHA MITTAL

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Present: Mr. Akash Singla, Advocate for the petitioner.

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Mr. Rajinder Goyal, Addl.Advocate General, Punjab, for respondent No.1.

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Mr. Amarjit Markan, Advocate, for respondent No.3.

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RAJIVE BHALLA, J

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The petitioner prays for issuance of a writ of certiorari quashing order dated 18.1.1995 passed by the Additional Director Consolidation of Holdings, Punjab at Mohali.

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M/s Tin Plate Industries purchased land measuring 10 Kanals-18 Marlas bearing new Killa numbers 113//15/2/1(1-10), 16/2 (5-0),15/1/2(2-10),114//20/2/2(1-18) from the original owner, after obtaining permission from the Consolidation Officer. A path was provided through the middle of this land. M/sTin Plate Industries filed an objection petition under Section 21(2) of the East Punjab

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Civil Writ Petition No.6726 of 1995 2

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Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the “Consolidation Act”) before the Consolidation Officer, praying that alignment of the path be altered. The Consolidation Officer dismissed the petition on 25.8.1965. An appeal filed under Section 21(3) of the Consolidation Act was allowed by the Settlement Officer on 3.2.1966 and the path, in question, was assigned a new alignment on the side of the land belonging to M/s Tin Plate Industries. The land was sold in 1973 to Parmeshri Dass son of Lachhman Dass etc. The latter raised some construction on the land, originally, reserved as the path. The petitioner claims to have purchased the land, in dispute, on 7.6.1976 from Parmeshri Dass etc. The petitioner also claims that he has constructed two rooms, one kitchen, one store and one bath room for residential purposes, after demolishing the old structures.

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The private respondents filed a petition under Section 42 of the Consolidation Act on 18.3.1983, praying that as right holders were not impleaded or granted an opportunity of hearing, before order dated 3.2.1966 was passed, the said order is a nullity and may be set aside. The Additional Director, Consolidation of Holdings, vide order dated 30.3.1983, passed an ex parte order setting aside order dated 3.2.1966. The petitioner filed a petition under Section 42 of the Consolidation Act, bringing the ex parte order to the notice of the Additional Director, Consolidation of Holdings, who, vide order dated 27.3.1984, set aside the ex parte order and directed that the matter shall be heard afresh, after inspection of the spot. The Additional Director Consolidation called for a report from the

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Civil Writ Petition No.6726 of 1995 3

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Consolidation Officer. The Consolidation Officer submitted a report, dated 12.12.1985, pointing out that the path provided, vide order dated 3.2.1966, is in use at the spot.

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The Additional Director, Consolidation of Holdings, vide order dated 18.12.1985, accepted the petition, filed by private respondents and set aside order dated 3.2.1966, by holding that it is an ex parte order and thereafter remanded the matter to the Settlement Officer, to decide the matter afresh. It would be appropriate to point out that the petitioner did not challenge this order any further and appeared before the Settlement Officer, who, vide order dated 27.6.1986, remanded the case. The Consolidation Officer passed order dated 30.12.1987 affirming the alignment of the path provided, by the Settlement Officer, in his order dated 3.2.1966. The private respondents filed an appeal under Section 21 (3) of the Consolidation Act. The Settlement Officer, vide order dated 29.12.1988, accepted the appeal and set aside the order passed by the Consolidation Officer. The petitioners filed an appeal under Section 21(4), of the Consolidation Act, before the Assistant Director Consolidation of Holdings. The appeal was allowed, vide order dated 7.6.1993, and the case was once again remanded to the Settlement Officer, for deciding the matter, afresh, after visiting the spot and taking such evidence into account as may be produced by parties.

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The private respondents filed a petition under Section 42 of the Consolidation Act. The Additional Director, Consolidation of Holdings, vide order dated 18.1.1995, Annexure P-10, set aside order dated 7.6.1993 passed by the Assistant Director, Consolidation,

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Civil Writ Petition No.6726 of 1995 4

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in essence, thereby affirming order dated 29.12.1988 passed by the Settlement Officer, Jalandhar, restoring the alignment prepared during consolidation.

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Counsel for the petitioner submits that, admittedly, the original alignment of the path, bifurcates the petitioner's land. The Settlement Officer, vide order dated 3.2.1966, rightly shifted the path. The said order and the other orders passed in favour of the petitioner should not have been set aside by the Additional Director Consolidation, as these orders do not suffer from any error of jurisdiction or of law. It is further submitted that order passed on 3.2.1966 was impugned for the first time in 1983 without furnishing any explanation for delay. It is further pointed out that as a result of the impugned order, the path would now pass through the middle of the petitioner's plot, thereby bifurcating the land and leading to demolition of his constructed portion.

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Counsel for the private respondents submits that he has instructions to state that no part of the petitioner's residence shall be demolished and the only structures, i.e., a small wall, a room for a tubewell and a kotha, raised during pendency of proceedings are to be demolished. Counsel for the private respondents submits that order dated 3.2.1966, which is the foundation of the petitioner's rights, was passed without impleading private respondents or any other proprietors. The petitioner's vendor impleaded “Jumla Malkan”, which is neither a juristic person nor a legal entity. The order was, therefore, illegal and void as it was passed without affording an opportunity of hearing to affected persons, namely, right holders like,

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Civil Writ Petition No.6726 of 1995 5

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the private respondents. It is argued that private respondents do not have any personal grievance against the petitioner, but a perusal of the site plan reveals that the path, as originally sanctioned, leads straight to the main road, whereas the path provided by order dated 3.2.1966, takes a circuitous route, to the main road and as it is only 11 feet wide, tractor trollies cannot cross, each other. It is submitted that the Additional Director Consolidation was, therefore, justified in restoring the original path, sanctioned during consolidation.

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We have perused the impugned order as well as various other orders passed by consolidation authorities.

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Counsel for parties admit that though the path, sanctioned during consolidation, leads straight to the main road, it bifurcates the petitioner's land but the path, sanctioned, vide order dated 3.2.1966, takes a circuitous route and is, rather, narrow. The bone of contention between parties is the alignment of a path. The alignment of the path was altered, vide order dated 3.2.1966, without impleading any proprietor or right holder, of the area likely to be adversely affected by the change in alignment. The alignment of a path is sanctioned after considering the location of agricultural land, the abadi deh, ponds, streets and the entire revenue estate. A change in alignment, of a path, sanctioned during consolidation, would require a party seeking such a change to implead all necessary parties, in this case, proprietors and right holders of the area concerned. An order altering the alignment of a path, without impleading all such persons, as are likely to be adversely affected, would render such an order, void. The order dated 3.2.1966 reveals

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Civil Writ Petition No.6726 of 1995 6

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that private respondents and right holders were not impleaded, much less served, before order dated 3.2.1966, altering alignment of the path, was passed. A relevant extract from order dated 18.12.1985, recording these facts, reads as follows:

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“ I have heard the parties and examined the record. The contention of the learned counsel for the petitioner is that the Settlement Officer CH while passing the order dated 3.2.1966 did not give the opportunity of being heard to the petitioner. Admittedly, the petitioner was not given the opportunity of being heard by the Settlement Officer CH while passing the order dated 3.2.1966. The ends of justice require that they should be given opportunity of being heard by the Settlement Officer CH while deciding this case. On the other hand, the learned counsel for the respondent has contended before me that the petition against the order of the Settlement Officer CH is timebarred and should not be accepted. I am not inclined to accept the plea of the learned counsel for the respondent as the question of limitation does not arise in this case as the petitioner was not party before the Settlement Officer while he passed the impugned order dt. 3.2.1966. In addition to above, the learned counsel for the respondent has also argued before me that the report of the C.O. which is available on the file, reveals that some construction has come up at site in dispute. The fundamental point involved in this case is that the

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Civil Writ Petition No.6726 of 1995 7

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petitioner should have been heard by the Settlement Officer CH. The denial of hearing to him clearly amounts to denial of justice to him. The ends of justice require that the petitioner should be given opportunity of being heard by the Settlement Officer CH while deciding this case. Accordingly, the petition is accepted, the impugned order of the Settlement Officer CH dt. 3.2.1966 is set aside being an ex parte order against the petitioner and the case is remanded to the Settlement Officer CH for fresh decision on merits after hearing the parties. It is further observed here that while deciding this case the actual position on the site existing at present may be kept in mind by the Settlement Officer CH. On the prayer of the learned counsel for the respondent, it is further ordered that status quo will continue in this case till its decision by the Settlement Officer CH. File be consigned to the record room.”

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The petitioner's vendor, instead of impleading the proprietors, impleaded “Jumla Mushtarka Malkan” as a party. The words “Jumla Mushtarka Malkan” denote the right holders, of a village, as a whole. The words “Jumla Mushtarka Malkan” do not refer to a juristic person or a legal entity. The petitioner has not been able to refer to any notice, that was served upon any member of the “Jumla Mushtarka Malkan” or any other right holder. In the absence of any evidence that any right holder was ever impleaded or served, order dated 3.2.1966 was rightly set aside by the Additional Director,

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Civil Writ Petition No.6726 of 1995 8

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Consolidation of Holdings.

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An argument advanced by counsel for the petitioner, that order dated 3.2.1966 should not have been set aside after a delay of 17 years, may have been accepted but for the fact that the petitioner did not challenge order dated 18.12.1985, whereby order dated 3.2.1966 was set aside, before any forum. In fact, the petitioner accepted this order and appeared before the Settlement Officer for further proceedings. The Settlement Officer, remanded the dispute to the Consolidation Officer, who passed an order on 30.12.1987 in favour of the petitioner. An appeal filed before the Settlement Officer, against order dated 30.12.1987, was allowed but this order was further set aside by the Assistant Director, Consolidation of Holdings, Jalandhar on 7.6.1993, who remanded the matter to the Settlement Officer, Consolidation of Holdings. The matter, eventually, came up for consideration before the Additional Director, Consolidation of Holdings, who passed the following order on 18.1.1995:-

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“ Arguments of the parties were heard and the record attached with the file were perused carefully. 45 persons of Sant Attar Nagar Sudhar Sabho near Police Line Barnala Road, Sangrur filed an application dated 2.12.1994 before me and apart from this municipal councellor Sangrur and Sarpanch of the Gram Panchayat Arheri Block Sangrur along with its members Panchayat by passing resolution prayed that path provided by the Settlement Officer earlier after inspecting the spot in the presence of said persons be got intact and the straight

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Civil Writ Petition No.6726 of 1995 9

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path be provided and this path is under the common use of public and the general public of the area will be in trouble due to the path having dangerous turns and tractor trollies will not be able to across the said path and the straight path is to be used by village Baguana Basti Sant Attar Singh Nagar, Kartarpura Harari and other villagers/villages and this path should be straight and the copies of the said 3 resolutions dated 2.12.1994 were given to the counsel for the parties and against this nothing has come forward before me from which it is proved apart from the necessity of the petitioner, the straight path is the necessity of general public of the area and after considering all these facts carefully I came to the conclusion that this long litigation continuing from the last 30 years should be ended so that litigants and general public may feel comfort. So I accept this petition and set aside the order dated 7.6.1993 of the Assistant Director Consolidation, Punjab, Jalandhar and the straight path provided vide order dated 29.12.1988 of the Settlement Officer, Jalandhar is restored.

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Except above said, no other objections have been raised. The order was reserved on 3.1.1995 after hearing the arguments of the parties and the same is announced today on 18.1.1995 in the presence of the counsels for the parties and in the open Court.

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File be consigned in the record room after

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Civil Writ Petition No.6726 of 1995 10

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compliance.”

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At no stage of the proceedings did the petitioner challenge order dated 18.12.1985. A perusal of the finding recorded, in the impugned order, reveals that the Additional Director, Consolidation, Punjab, Mohali, has clearly held that the new alignment of the path contains “turns” that would prevent tractor trollies from crossing each other and the straight path, originally, allotted, during consolidation, is the best possible path. The impugned order has merely restored the original alignment of path sanctioned during consolidation. The petitioner's plea that in case the order is allowed to stand, his constructed portion would be demolished, in our considered opinion, does not merit acceptance, as counsel for the respondents has made a statement that only constructions raised during pendency of proceedings, would be demolished.

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In this view of the matter, the writ petition is dismissed, but with a direction that no part of the residential structure belonging to the petitioner, shall be demolished, other than a small wall, a kotha and tubewell, which were constructed during pendency of proceedings. No order as to costs.

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11.2.2013 ( REKHA MITTAL ) vk JUDGE

Amrik Singh v. Addl Director C/H etc.

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Amrik Singh v. Addl Director C/H etc.

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