Gurdas Singh & Others v. State of Punjab & Others

In the High Court of Punjab and Haryana at Chandigarh CWP No. 1570 of 2017 Reserved on 22.3.2023 Date of Decision: 11.4.2023 Gurdas Singh and others .....Petitioners Versus The State of Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR HON'BLE MR. JUSTICE KULDEEP TIWARI Argued by: Mr. Jasmail Singh Brar, Advocate for the petitioner. Mr. Maninder Singh, DAG, Punjab. Mr. Ashish Gupta, Advocate for respondent No. 6. **** SURESHWAR THAKUR

, J.

Factual background

¶1One Gamdoor Singh son of Bikar Singh resident of village Bhuttiwala, Tehsil and, District Sri Muktsar Sahib, instituted against the petitioners herein, a petition under Section 42 of the East Punjab Holding (Consolidation and Prevention of Fragmentation) Act, 1948 (for short 'the Act of 1948). In the said petition, the above Gamdoor Singh claimed that, in the finalized consolidation scheme, khasra Nos.160//22, 167//2-9 became allotted to his ancestors. He also pleaded thereins that passage to those khasra numbers was provided from khasra No.167//10. Moreover, he pleaded, that khasra Nos.160//12,13,14,15,17 were allotted to the respondents. However, he pleaded that on the above said carved consolidation rasta, there was a big sand dune, and, owing to the said sand dune, the passage on the joint boundary of khasra No. 167/1, 2,9,10 was being used as passage for the area of khasra No. 160//12,13,14,15.

¶2The authority, before whom the said petition became presented, through an order, made on 20.11.2013, and, which becomes enclosed in Annexure P-2, made an order of remand thereof, to the District Revenue Officer-cum-Consolidation Officer but with a direction, that after hearing the parties concerned, and, after his inspecting the spot in the presence of both the parties, his making appropriate orders in respect of the claimed passage.

¶3Annexure P-2 resulted in the District Revenue Officer-cum-Consolidation Officer, Sri Muktsar Sahib, through his drawing Annexure P-3, on 20.2.2014, assigning the claimed passage to the petitioner therein one Gamdoor Singh. A perusal of Annexure P-3 also discloses, that in granting a new revenue rasta other than the one which was provided to one Gamdoor Singh in the finalized consolidation scheme, by the Consolidation Officer concerned, he made the hereinafter tabulated extracted withdrawals, and, additions. Sr. No. Withdrawn Area Added

¶1Bohar Singh, Iqbal Singh, Gurdas Singh ss/o Chanan Singh 160//21 (south) 2 x 40 E. W . S. N 2 2 40 2 22/2 (west) E. W. S. N 2 1 21.1 2 0-9 0-5 160//22/1(east,south) 0-15 (which has been withdrawn at Sr. No. 2)

¶2Gamdoor Singh s/o Bikar Singh 160//22/1 (east, south) E. W. S. N 3 4 38 38 0-15 160//21 (south 0-9) which has been withdrawn 22/2 (west 0-5) at Sr. No. 1.

¶4The aggrieved therefrom Gurdas Singh and others instituted an appeal thereagainst before the Deputy Director, Land Record-cum-Settlement Officer Consolidation, Punjab, Jalandhar. However, on the said statutory appeal bearing No. 07/2014, the Appellate Authority concerned, made a decision, on 24.12.2014, and, to which Annexure P-4 became assigned, whereby it concurred with the decision, as became earlier rendered through Annexure P-3. Subsequently the aggrieved Gurdas Singh and others instituted an appeal under Section 21(4) of the Act of 1948 against the decision, embodied in Annexure P-4. However, yet the above motion also yielded no successful results.

¶5Therefore, the petitioners being aggrieved from all the above concurrently made orders against them, are led to obviously institute thereagainst the instant petition before this Court. Objective of the Act of 1948

¶6The statutory object of the Act of 1948, is to prevent fragmentation, and, to consolidate the land holdings of the estate holders whose lands are scattered in small patches in different portions of the mohal concerned. Moreover, the consolidation officer concerned, is also required to, in his drawing the finalized consolidation scheme rather ensure the participation thereins, of all the estate holders, and, also is required to constitute a "mushawra committee" for ensuring that the purpose (supra) of the Act of 1948, is given the fullest lawful consensual effect. Moreover, after the finalization of the consolidation scheme, the consolidation officer, rather in terms of Section 22 of the Act of 1948, is also required to be updating the records.

¶7Be that as it may, it is also a statutory obligation upon the consolidation officer concerned, to in the finalized consolidation scheme to earmark thereins a revenue rasta hence for enabling all the estate holders to exercise thereons their easementary rights. Inordinate delay in casting the statutory motion bars relief

¶8It is not disputed amongst the contesting litigants, that in the finalized consolidation scheme, which happened on 27.7.1964, rather a revenue rasta was earmarked thereins, obviously for enabling the estate right holders to exercise thereons their easementary rights. Resultantly, the said revenue rasta, did in terms of Section 22 of the Act of 1948, became entered in the revenue records.

¶9The motion for the relevant purpose, and/or for the purpose of correcting the apposite revenue entry, as became made in the year 1964 in respect of the untenability of carrying of a consolidation revenue rasta but was made after almost 49 years elapsing therefrom, inasmuch as it was made in the year 2013.

¶10The above gross delay is of paramount importance. Though Section 42 of the Act of 1948, provisions whereof stand extracted hereinafter, does not prescribe any rigid period of limitation, rather for provisions thereof becoming ably recoursed by the aggrieved, but yet for a tenable motion being made in terms thereof, before the competent authority concerned, the said motion has to be made within a reasonable time. However, any inordinately procrastinated period of delay (supra), but is not a reasonable time, for the said remedy becoming ably recoursed, rather reeks of the stench of gross delay and latches. Thus, on the above vice of gross delay and latches, the relevant motion was misconstituted, and, was required to be not entertained.

¶42Power of [State] Government to call for proceedings.- 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: Provided that [no order or 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.]

¶11Though the exception to the above principle, would be in case there is a material irregularity or gross illegality in the drawings of the finalized consolidation scheme, but no such gross illegality or material impropriety, has been noticed in the drawings of the consolidation scheme, by the consolidation officer concerned. Therefore, also the above vice of gross delay and latches remained alive, and, did render the belated motion, as, laid before the competent authority concerned, rather to be completely misconstituted. No departure from the revenue rasta concerned, in the consolidation scheme rasther any other rasta can be claimed only from the civil Court

¶12As above stated, the revenue rasta was carved in the finalized consolidation scheme, and, also in terms of Section 22 of the Act of 1948, a revenue entry was made in the revenue records. The said revenue entry was created in the year 1964. The said revenue entry was unalterable, except in accordance with a decree of the Civil Court or through a title suit, being filed before the authorities, contemplated in the Punjab Village Common Lands (Regulation) Act, 1961. Thus, the alteration of the revenue rasta, as made through the impugned orders, is completely outside the domain of the able jurisdiction vested in the authorities constituted in the Act of 1948. Therefore, on the above score, the impugned orders are liable to be quashed, and, set aside.

¶13Preeminently also an able jurisdiction was exercisable by the authorities contemplated under the Act of 1948, but only if no revenue rasta was carved by the consolidation officer concerned, and/or if such a revenue rasta was carved, yet there being an evident obstruction against users thereof, at the instance of the petitioners herein, and/or, against its user by the private respondents concerned. In that regard, the evidence existing on record, as above stated, discloses that the consolidation officer concerned, in his drawing of the finalized consolidation scheme, had earmarked thereins rather the apposite revenue rasta. If so, and, when there is no further evidence displaying that the respondent(s) herein became obstructed or halted by the adversary litigant concerned, from theirs using the same for theirs exercising thereons their easementary rights, whereas, the above proven obstruction may have empowered the authorities concerned, to yet exercise an able jurisdiction on the relevant motion. Therefore, when, as above stated, no evidence (supra), is existing on record. Thus, no able empowerment becomes vested in the authorities contemplated in the Act of 1948, to yet decide the apposite belated motion in favour of the private respondents herein. The above has resulted, as revealed by the hereinabove extracted table, to untenably annul the updation of the record, as made by the consolidation officer concerned, in terms of Section 22 of the Act of 1948. The above alteration was impermissible as it could have been done only under a decree of the Civil Court. Moreover, such an alteration has also transgressed the spirit of the Act of 1948, which is but enacted with an objective of ensuring consolidation of scattered lands of the estate holders, rather into a consolidated chunk. Final order

¶14In the wake of the above discussion, this Court finds merit in the petition, and, is constrained to allow it. Consequently, the petition is allowed. The impugned orders are quashed and set aside, leaving liberty to the private respondents to, on the basis of prescription and necessity file a civil suit before the Civil Court concerned, claiming thereins a declaratory relief qua the claimed path.

¶15The pending application(s), if any, is/are also disposed of.

(SURESHWAR THAKUR)

JUDGE

(KULDEEP TIWARI)

JUDGE April 11, 2023

Gurpreet :