Disposed

Gram Panchayat Ubhawal v. Director Consolidation of Holding Pb & Ors.

Punjab & Haryana HC26 Apr 2024CWP/10931/1996

Case brief

AI extract

What is this about?

Writ petition by a Gram Panchayat against consolidation authorities' orders finding it had encroached on respondents' allotted land. The High Court held the measurements lacked a validly conducted demarcation and proven demarcation report, quashed the impugned orders, and directed fresh demarcation with liberty to seek possession before a civil court.

What did the court decide?

Impugned orders Annexure P-1 and P-2 quashed; status quo directed; private respondents to seek valid demarcation, then may file suit for possession in civil court.

Gram Panchayat Ubhawal Vs Director Consolidation… — Land Acquisition | Punjab & Haryana HC (2024)

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CWP No. 10931 of 1996

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2024:PHHC:057018-DB

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-1-

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In the High Court of Punjab and Haryana at Chandigarh

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(103) CWP No.10931 of 1996(O&M) Date of Decision: 26.04.2024

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Gram Panchayat Ubhawal

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.....Petitioner

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Versus

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Director Consolidation of Holding Punjab and others ....Respondents

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CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR HON'BLE MR. JUSTICE LALIT BATRA

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Present: Mr. Kanish Jindal, Advocate and Mr. Arun Jindal, Advocate for the petitioner.

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Mr. Maninder Singh, Sr. DAG, Punjab.

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Mr. Jatinder Singla, Advocate and Ms. Shivani Singla, Advocate for respondents No.3 and 4. ****

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SURESHWAR THAKUR, J. (ORAL)

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Sukhdev Singh and Gurmel Singh sons of Chhota Singh @ Gurbachan Singh, residents of village Ubhawal, Tehsil and District Sangrur, instituted against Gram Panchayat village Ubhawal, Tehsil and District Sangrur, through its Sarpanch, a petition bearing Missal No.134 of 1994 before the Additional Director, Consolidation of Holdings, Punjab, Mohali. The said Missal was constituted under the provisions of Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter in short referred to as ‘the Act of 1948’).

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Through the said petition, the petitioners therein claimed, that on the fields of the site concerned, there was a physical shortfall of 1 kanal, thus, from the khatoni pamaish or khatoni istemal as became prepared by the

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DIWAKER GULATI 2024.04.30 16:51 I attest to the accuracy and authenticity of this document

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CWP No. 10931 of 1996

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-22024:PHHC:057018-DB

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Consolidation Officer concerned. Resultantly, since there was an inter se discrepancy inter se the physical measurements made in respect of the disputed lands, rather with reflections made in the above documents, as such, the said physical deficiency was asked to be cured through measurements becoming carried out, at the instance of an empowered reviewing officer concerned. Therefore, it appears that the dispute supra as such was not related to the curing or reviewing of any arithmetical mistake or clerical error which occurred in the record of rights but the said dispute related to, despite the petitioners in the said Missal, becoming reflected in the record of rights, to be owning a specific portion of land, in the relevant killa number, yet on the spot, but after the petitioners purportedly holding measurements thereof, thus the said measurements revealing that on the site of the disputed lands, the area of the lands, being lesser than the ones as became allotted to them in the finalized consolidation scheme, or was lesser than the one which was reflected respectively in the khatoni pamaish and in the finalized scheme istemal .

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On the said Missal Annexure R-3/2 was made, whereby the Additional Director, Consolidation, without delving into or making a prima facie discussion about the validity of the exercising of jurisdiction by him, on the said petition, imperatively qua the claim raised in the petition relating to the undoing of any clerical or arithmetical error, as occurred in the record of rights, rather only proceeded to make a simplicitor order of remand to the Consolidation Officer, on the ground that the said lis is to be decided at his level in the presence of the parties. As such, through Annexure R-3/2, the Additional Director, Consolidation, appears to have found that the dispute as

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DIWAKER GULATI 2024.04.30 16:51 I attest to the accuracy and authenticity of this document

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CWP No. 10931 of 1996

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-32024:PHHC:057018-DB

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such related merely to land lesser than the one which became allotted to the petitioners through the documents supra, rather existed at the site concerned, and as such, he construed that the said claim raised by the petitioners in the said Missal was required to be decided by the Consolidation Officer concerned.

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In the wake of the above non-making of any effective adjudication on the merits of the lis , therebys the non-making of any challenge theretos, thus, does not yet estop the present petitioner to yet make a challenge respectively to the impugned Annexures P-1 and P-2.

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The learned counsels appearing today before this Court, do not raise any contest that there was any error, as such, in the record of rights which became updated by the Consolidation Officer concerned, nor do they wrangle over the further fact that the jurisdiction to be exercised by the authority contemplated under Section 42 of the Act of 1948, is permissibly exercisable but only for the undoings of any arithmetical or clerical error, which occurs in the record of rights, especially when the preparation of the record of rights, is in complete dis-concurrence with the scheme istemal , naksha haqdarwar and khatoni pamaish . If so, the only contest which remains to be rested relates to the validity of the concurrently made impugned orders Annexure P-1 and P-2, whereby the private respondents before this Court, were after measurements becoming made at the site concerned, but in terms of the relevant records of rights, thus assigned physical possession of lands, so as to overcome the physical deficiency of about 1 kanal at the disputed site. Moreover, accordingly the field book which was prepared by the Halqa Patwari but in non-conformity with

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DIWAKER GULATI 2024.04.30 16:51 I attest to the accuracy and authenticity of this document

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CWP No. 10931 of 1996 -4-

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2024:PHHC:057018-DB

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documents supra, was also ordered to be rectified. As such, the apposite measurements as carried in the field book were aligned to the apposite physical measurements as became made at the site.

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For completely resting the said dispute relating to lesser quantum of land existing at the site of the disputed lands from the one as became allotted to the private respondents, in the writ petition, though the able jurisdiction to be exercised on the said controversy, was to be so exercised on a motion being made before the empowered Assistant Collector concerned, so that, he consequently proceeds to appoint either the Patwari of the halqa concerned or the Kanungo of the halqa concerned, to carry out demarcations, so that, therebys rather becomes rested, the boundary dispute which emerged inter se the private respondents in the instant petition and the writ petitioner, before this Court. Resultantly in terms of the demarcation report, the private respondents, if the present petitioner was found to be encroaching upon their lands, are led to institute a suit for possession before the learned Civil Court of competent jurisdiction.

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Be that as it may, since the said remedy remained unavailed yet even if through the concurrently made orders, after some measurements being carried vis-a-vis the site of the disputed lands, thereby it was found that the present petitioner had made encroachments over the lands of the private respondents in the instant writ petition, thereby the said made measurements would hold some validity in law, but only when a validly conducted demarcation, thus was made of the disputed site concerned. However, a reading of the impugned orders discloses that, excepting measurements being made of the disputed sites, rather no valid demarcation,

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DIWAKER GULATI 2024.04.30 16:51 I attest to the accuracy and authenticity of this document

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CWP No. 10931 of 1996

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-52024:PHHC:057018-DB

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as such, became conducted over the disputed sites concerned. The above inference becomes fortified from the factum, that no demarcation report became prepared nor the said prepared report by the empowered demarcating revenue officer became either tendered into evidence or became proven, in accordance with law. The makings of simplicitor measurements, though in the presence of the parties, but without candid speakings in the impugned orders, that the said measurements resulted in the preparation of a demarcation report, and, subsequently the said prepared demarcation report became tendered into evidence, besides became proven in accordance with law, but are to become construed to be ideally made measurements of the disputed sites. Resultantly theretos, rather no credit can become assigned.

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In the wake of the above, the evident lack of a validly conducted demarcation of the disputed sites, besides for the lack of any demarcation report being prepared or the same becoming lawfully tendered and proven in accordance with law, therebys it was inapt for both the authorities below to respectively, in the concurrently made impugned annexures, thus declare that the present petitioner had made encroachments upon land which became allotted to the private respondents in the instant writ petition. Moreover, the corrections in the field book as were ordered to be made also could not be so ordered.

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In sequel, the instant petition is allowed and the impugned orders Annexure P-1 and P-2 are quashed and set aside. Be that as it may, since as stated supra the dispute which has emerged amongst the contesting litigants relates to the present petitioner encroaching upon the land which became allotted to the private respondents, thereupon this Court directs the

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DIWAKER GULATI 2024.04.30 16:51 I attest to the accuracy and authenticity of this document

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CWP No. 10931 of 1996

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-6-

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2024:PHHC:057018-DB

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private respondents to forthwith institute an application before the Assistant Collector concerned for the latter appointing an empowered revenue officer concerned, to make valid demarcation of the disputed sites. In case in the demarcation report which becomes prepared by the empowered revenue officer concerned some encroachments are revealed to be made over the disputed sites or over the lands allotted to the private respondents, before this Court, thus by the present petitioner, thereupon the private respondents are permitted to institute a suit for possession against the present petitioner, but only before the Civil Court of competent jurisdiction. The said civil suit be instituted within two months from today but within one month the demarcation of the disputed site be ensured to be completed. However, thereupto, the parties are directed to maintain status qua the disputed lands. 10. The instant writ petition is disposed of accordingly. Pending applications, if any, also stand disposed of.

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(SURESHWAR THAKUR) JUDGE

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(LALIT BATRA) JUDGE

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April 26, 2024 d.gulati

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Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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DIWAKER GULATI 2024.04.30 16:51 I attest to the accuracy and authenticity of this document

Gram Panchayat Ubhawal v. Director Consolidation of Holding Pb & Ors.

Case brief

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Gram Panchayat Ubhawal v. Director Consolidation of Holding Pb & Ors.

Case brief

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What did the court decide?

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