Banarsi Dass vs Director, Consolidation of Holdings, Haryana and ors.

H.S. Brar and A.P. Chowdhri, JJ.

In this petition under Article 226 of the Constitution of India, an order of the Director Consolidation of Holdings, Haryana, Chandigarh, dated February 21, 1994 passed under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act) vide which the case has been remanded to the Consolidation Officer, Karnal, with the direction that a shortest path be provided to the petitioner (respondent No. 3 in this petition), has been challenged.

Briefly stated the facts as narrated in the petition are that the consolidation proceedings took place in Village Jarodi, Tehsil Jagadhri, District Yamunanagar during the year 199293 (196263?). As per the provisions of the Scheme of Consolidation, paths were provided to Taks (Holdings) of the rightholders. Kishori Saran, rightholder in the village was provided paths on three sides inasmuch as on one side was metalled road 66'' wide and two paths (Rasta) 11'' (2gathas) wide on two sides. His Tak was, thus, approachable from all the three sides. His land is shown as green in the Sketch Plan attached as Annexure P1 with the petition and the paths are shown in black colour.

One Garibu was cultivating the land as a tenant under aforesaid Kishori Saran (hereinafter referred to as the original owner). Garibu purchased the land under his tenancy from Kishori Saran. Upon the death of Garibu, the land was inherited by is sons, Rakhu Ram and Puran Chand in equal shares. The land in dispute in this case is 1/2 share of the land measuring 52 Kanals in all.

M/s. Jagadhri Bricks Co., Jarodi (respondent No. 3) through its partner Jawahar Lal, resident of 601, Sant Pura Road, Model Town, Yamunanagar purchased the land detailed hereunder :

(i) 8 Kanals from Rakhu son of Garibu vide Registered Sale Deed, dated December 6, 1991;

(ii) 8 Kanals from Rakhu son of Garibu vie Registered Sale Deed, dated December 9, 1991; and

(iii) 10 Kanals from Puran Chand son of Garibu vide Registered SaleDeed, dated April 27, 1992.

Resultantly, M/s. Jagadhri bricks Co. (respondent No. 3) purchased 26 Kanals of land being 1/2 share of the joint holding of Rakhu and Puran Chand sons of Garibu, Mutation to that effect was sanctioned in the year 1992. A portion of the land purchased by respondent No. 3 has been encircled in red colour as shown in Annexure P1, referred to above. After purchase of this land from the original owner in 1991, respondent No. 3 wanted to approach his fields through their fields which the petitioners did not permit. When the respondents threatened to use illegal force to carry out illegal purpose, the petitioners were compelled to institute a civil suit restraining the respondents from in any manner changing the nature of the land or unduly interfering in their possession. In the suit, the respondents were restrained by an order of the civil Court from interfering with the possession of the petitioners. The said suit is still pending.

Respondent No. 3 in the meantime, filed a petition under section 42 of the Act stating that during consolidation proceedings, path was not provided to the land which they had purchased and, therefore, a path through the land of the petitioners be provided to them. In that petition, only Banarsi Dass son of Buta Ram was impleaded as a respondent, though the name of Kanwar Bhan son of Kalu Ram was mentioned. A copy of the petition filed by respondent No. 3 under section 42 of the Act is annexed as Annexure P2 with the petition.

Upon notice of the petition under Section 42 of the Act being served upon Banarsi Dass and Kanwar Bhan, they put in appearance and filed a detailed written statement stating the matter was pending before the civil Court in suit entitled Ram Murty v. Jawahar Lal and others and orders for maintenance of status quo had been passed and, thus, the petition under section 42 of the Act was not maintainable.

The factum of pendency of the civil suit regarding the same matter was thus brought to the notice of the Additional Director at the time of arguments. It was also pointed out to the learned Additional Director on the basis of the record produced by the Patwari the Kurrah of Kishori Sarup, original owner, predecessor of respondent No. 3 had paths on three sides of his land and Director Consolidation of Holdings in a similar petition had dismissed the petition being not competent.

It is then stated in the petition that a certified copy of the order of Shri R.K. Taneja, I.A.S., Director Consolidation of Holdings, Haryana, Chandigarh, dated February 22, 1990, Ram Saroop v. Chamela Ram, besides judgment of Punjab and Haryana High Court reported as 1994 PLJ 146 were placed before him for consideration, and it was argued that on the basis of three paths being provided to the Tak of the original owner under the scheme and in view of the order of the Director, Consolidation of Holdings and the judgment of the High Court, the petition under Section 42 of the Act was liable to be dismissed. It was further urged before the learned Additional Director that the consolidation took place in the village thirty years back and the record being consigned to the record room around the year 1965. No path could be provided to a person who had purchased the land from an owner subsequently in the year 1992, and particularly so, when the original owner was provided three paths to his Kurrah..

Beside the factual position, personal allegations against respondent No. 2 Dr. Sukhbir Singh, I.A.S., Director Consolidation of Holdings, Haryana, Chandigarh, who according to the petitioners accepted the petition under Section 42 of the Act for wholly extraneous considerations on account of political pressure and mala fide, have been levelled.

Written statement on behalf of respondents No. 1 and 2, that is, Director Consolidation of Holdings, Haryana, Chandigarh and Dr. Sukhbir Singh, I.A.S., Director Consolidation of Holdings, Haryana, Sector 22B, Chandigarh has been filed by Dr. Sukhbir Singh, I.A.S., Director Consolidation of Holdings, Haryana, Chandigarh.

In reply filed by Dr. Sukhbir Singh, Director Consolidation of Holdings, that is, respondent No. 2, factual position as stated in the petition regarding the provision of paths to the Taks (Holdings) of the right holders and providing three paths to Kishori Saran, the original rightholders has been admitted. It is further admitted in the written statement that first Garibu purchased the land under his tenancy from Kishori Saran, original owner and thereafter respondent No. 3 M/s. Jagadhari Bricks Co. purchased 1/2 share of the land measuring 52 Kanals of Rakhu Ram and Puran Chand sons of Garibu who inherited the land on the death of their father Garibu vide different Sale Deeds as described above in the brief facts in the years 1991 and 1992.

Para No. 11 of the petition in which the factum of pendency of a civil suit regarding the same matter is concerned, has not been denied by the Director. In reply, it is only mentioned that para No. 11 does not concern the answering respondent.

The factual position stated in para No. 13 of the petition that on notice of the petition under section 42 of the Act being served upon Banarsi Dass and Kanwar Bhan, they put in appearance and filed a detailed written statement stating that the matter was pending before the civil Court and orders for maintenance of status quo had been passed, petition under Section 42 of the Act was not maintainable and that the Director Consolidation of Holdings had no jurisdiction to entertain the said petition after thirty years of completion of consolidation proceedings has not been denied by the Director and the State in the reply.

As regards the order of the Director annexed as Annexure P4 with the petition which was produced before the Additional Director, it is simply stated that the contents of that case were different, though we do not find any material difference between the contents of the order of the Additional Director cited before him and the facts of this case in the case cited before him, the path was provided to the original owner and, thus, no path was provided to the subsequent purchasers from the original owner. Nothing, however, was said in the reply about the case reported as 1994 PLJ 146 cited before him. Of course, the allegations of mala fide and political pressure or any other extraneous consideration are denied by respondent No. 2 in his reply.

Written statement on behalf of respondent No. 3 through its partner, Shri Jawahar Lal has been filed. Purchase of the land in question by respondent No. 3 from Rakhu Ram and Puran Chand sons of Garibu has not been denied. In para 3 of the Writ Petition, it is stated that as is evident from wajibularz only the rightholders of a joint holding etc. were to be provided with a path. However, in this case, no path was provided in the consolidation (though it is admitted in para 5 of the written statement that there is a metalled road and a path on western side of the land). It is then stated that the replying respondent or his predecessorininterest has not been provided with any sanctioned or unsanctioned path leading to their holdings, except the one unsanctioned path which is in existence and left by the predecessorininterest of the parties to the Writ Petition immediately after consolidation of holdings and has been used as a path since the consolidation took place in the village.

It is then stated that the Additional Director, Consolidation had jurisdiction to entertain the petition, as no limitation was provided under the Act.

It is further stated in the reply that the petitioners had filed a suit referred to in the petition with an ulterior motive in order to prevent the replying in respondent from using the path which has been dismissed as withdrawn in view of compromise, dated February 2, 1994, annexed as Annexure P3/B with the reply.

Replication was also filed by the petitioners rebutting the allegations made in the written statement of the respondents, affirming the averments made in the petition.

The factual position which emerges from a reading of the pleadings of the parties, is that at the time of consolidation proceedings, Kishori Saran, original landowner was provided path to his Tak on three sides inasmuch as on one side was metalled road 66'' wide and two paths (Rasta) 11'' (2 gathas) wide on two sides and it was approachable from all there three sides.

It is pertinent to note that the factual position that (i) after consolidation proceedings took place, one Garibu purchased the land including the disputed land from the original owner Kishori Saran and on the death of Garibu the land in question came to be inherited by his sons Rakhu Ram and Puran Chand in equal shares and the land in dispute is 1/2 share of the land measuring 52 Kanals purchased by Garibu from Kishori Saran, original owner; (ii) M/s. Jagadhri Bricks Co., respondent No. 3 purchased the land in dispute (much after the consolidation proceedings took place) in the years 1991 and 1992 from Rakhu Ram and Puran Chand sons of Garibu; (iii) that respondent No. 3, M/s. Jagadhari Bricks Co. was neither a landowner nor a party interested in any manner in the land in question at the time when the consolidation took place in the village in the year 1963. They came into picture only in December 1991 and April 1992 when respondent purchased the land in question from the sons of Garibu who had purchased the land from the original owner Kishori Saran who was the owner of the land at the time of consolidation proceedings; and (iv) that a civil suit was already pending in the Court regarding the same matter which was agitated before the Director by respondent No. 3 in the year 1993, has been admitted by the State and the Director, Consolidation in the reply.

After hearing the learned counsel for the parties, we are of the opinion that the order of the Director, Annexure P5, is liable to be set aside being illegal, arbitrary, cryptic and without jurisdiction. In the case in hand, application under Section 42 of the Act was made by M/s. Jagadhri Bricks Co. through its partner Shri Jawahar Lal, respondent No. 3 was admittedly neither a rightholder nor a party interested at the time of consolidation which was held in the village in the year 196263. Obviously, thus, he could not be aggrieved against the scheme prepared or repartition made in consequence of the scheme at the time of consolidation proceedings. Respondent No. 3 came into picture only in the year 199192 when he purchased the land in question (for which he demanded a path) and that also from Rakhu Ram and Puran Chand who inherited the property from their father who had purchased the property from the original landowner in the village. Consolidation proceedings had been finalised in the village near about the year 196364. The records were consigned to record room and the Consolidation Authorities became functus officio thereafter. 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 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 land owner after a passage of 25 years or so. There is no quarrel with the proposition of law settled by the Court and the Suprme Court. It is mentioned in The Gram Panchayat village Kanonda v. Director Consolidation of Holdings and others, 1989(2) RRR 554 (SC) : 1990 PLJ 213 that under rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, bar of limitation of six months is applicable only to orders and it does not apply to proceedings in which scheme is prepared or confirmed or repartition made is challenged, though it would be exercised within a reasonable time and what is reasonable time is always a question of fact depending upon the facts and circumstances of such case. In this case, neither any scheme prepared or confirmed nor repartition made had been challenged before the Additional Director by respondent No. 3. It was an application by a person who was neither an owner nor a party interested at the relevant time, i.e. the one who purchased the land of a subsequent vendee of an original owner after about 25 years of the consolidation proceedings and repartition of the land in question. Moreover, even if there was an application of a rightholder before the Director Consolidation, it was incumbent upon him to give the reasons for filing an application under section 42 of the Act before the Director Consolidation after 28 years of the repartition, though in this case even this question does not arise, as the applicant before the Director was not in any case connected with the repartition proceedings. Gram Panchayat village Kanonda''s case (supra) goes against the petitioners. Neither the applicant under section 42 of the Act explained the delay of 30 years in filing the applicant before the Director, nor the Director gave any reasons for condoling the delay. At the cost of repetition, in such a situation when with a passage of time rights of different people go on accruing due to sale etc. of the land and some dispute arises about the partition of land, providing of paths etc., to the subsequent vendees by the vendors of other rightholders, then to settle such latter disputes does not fall within the ambit and scope of section 42 of the Act. The disputes in such a situation can only be settled by a civil Court of competent jurisdiction. In the instant case undisputably the same matter was pending in the civil Court even before filing the application under Section 42 of the Act before the Director by respondent No. 3.

The Director has not adverted to any aspect of this matter at all. It will be helpful to reproduce the relevant portion of the order of the Director which runs as under :

"........After the scrutiny of records and site plan it has been found that the area which is situated towards the east of road No. 66 its landowners do not have any path. At the time of consolidation this area on the eastern side was owned by Sh. Kishori Saran. Garibu and others had purchased the same from Kishori Saran. Thereafter it was purchased by M/s. Jagadhri Bricks through Jawahar Lal vide Mutation Nos. 559, 560, 561. Khasra Girdari 1988 shows that from 1988 till today path is entered through Killa Nos. 25/8/2, 9, 10, 24,/15/1 and the case of the applicant/petitioner is that he has been provided the path through these Killa Nos. because at the time of consolidation no path was provided to the land in possession and the same be provided being essential now. Therefore, delay in filing this petition is condoned and case is remanded to Consolidation Officer Karnal with the direction that a shortest path be provided to the petitioner through Killa Nos. 25/8/1, 6, 7, 13 etc."

It appears that the Director Consolidation has accepted the petition under Section 42 of the Act and has ordered the Consolidation Officer to provide the shortest path to the applicant through Killa Nos. 25/8/1, 6, 7, 13 etc. because from 1988 till the decision of the application, the petitioner (respondent No. 3 in this case) had been provided the path through Killa Nos. 25/8/2, 9, 10, 24/11/1. The Director has assumed some facts which are neither here nor there. Undisputedly at the time of the consolidation proceedings, path was provided to the original owner, i.e. Kishori Saran. The applicant before the Director demanded the path only to his land which he purchased from the vendee of a subsequent vendee of the original owner i.e. Kishori Saran. This factual position has been admitted by the Director Consolidation in his written statement filed in this petition Even his order shows that he has assumed that somebody has provided a path to the applicant since the year 1990 from the abovementioned Killa Nos. i.e. after 22 years of the consolidation proceedings having taken place in the village. Though it is not made clear in the order yet still if respondent No. 3 at a later stage got some agreement or otherwise, and that path was discontinued by the person concerned, then he should have moved the civil Court for enforcement of any right if he had, to get the path back but could not invoke the jurisdiction of Director Consolidation under Section 42 of the Act. The finding of the Director Consolidation that at the time of consolidation, a path was provided to the land in dispute and the same be provided now and the delay in filing the petition be condoned is also without any basis as has been stated earlier that it was admitted by the Director Consolidation in his written statement itself that at the time of consolidation not only one but three paths were provided to the land of the original owner and the applicant before him is only a subsequent vendee of the original owner and that too in the year 199192. He has simply stated without giving any reasons that delay in filing the petition be condoned because at the time of consolidation, no path was provided to the land in his possession, which finding is without any basis. The Director Consolidation was, thus, not right in entertaining the petition of the petitioner under Section 42 of the Act after a lapse of about 25 years after taking place of consolidation proceedings in the village and that of a person who was not concerned either with the consolidation or repartition of the land at all, having come into picture only in the year 199192, when he purchased some portion of the land of a subsequent vendee, as stated above. The order of the Director Consolidation does not make any head or tail. He has accepted the petition by a cryptic order and has condoned the delay in filing the application before him only on assumptions based on no material. In this situation, we do not have the slightest hesitation in holding the order dated February 21, 1994 of the Director Consolidation of Holdings, Haryana, Chandigarh being cryptic, illegal and without jurisdiction.

Mehar Din v. The State of Haryana and another, 1994(1) RRR 437 (P&H) : (19941) 106 PLR 184 is also not applicable to the facts of this case. Moreover, in the said case it has been specifically mentioned in Para 3 of the judgment that no path was provided to the vendor of the petitioner in that case even during consolidation proceedings. In the case in hand, not only one but three paths had been provided to the original owner.

Consequently, this petition is allowed and the order of the Director Consolidation of Holdings, Haryana, Chandigarh, dated February 21, 1994 is set aside and the application of respondent No. 3 before him stands quashed.