Vijay Kumar vs Additional Director, Consolidation of Holdings, Haryana, Rohtak

G.C. Garg, J.—Consolidation operations were carried in village Deb Babanpur Dhani, Tehsil Ratia, District Hisar somewhere in the year

195960. At the time of consolidation, a cut was imposed on the rightholders. Out of this land, after leaving some area for common purposes, a

separate khewat was forced and was recorded in the revenue record as ''Mushtarka Malkan Va Deegar Haqdaran Hasab Raqba Khewat''. In the

column of cultivation of jamabandi for the year 195960, this land was shown as ''Maqbuja Malkan''. In view of the entries in the revenue record,

the petitioners filed an application under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for

short ''the Act''), Annexure P3, contending that the Consolidation Department had applied a huge cut at the time of consolidation and it was on that

score, much area was left which had to be recorded as Mushtarka Malkan Va Deegar Haqdaran Hasab Raqba Khewat, and the same being in

possession of the rightholders, is the ownership of the whole village and, therefore, was liable to be partitioned. It was also contended that the land

of the proprietors could not be reserved for the income of the Gram Panchayat and for the benefits of non agriculturist labourers and the Khewat

of Zumla Mustarka Malkan was liable to be partitioned and distributed to the shareholders according to their shares. It was in this context, prayed

that the share of the rightholders be determined and carved out.

The Additional Director, Consolidation of Holdings, Haryana, Rohtak vide his order dated April 11, 1989, Annexure P4 disposed of the

application by observing that since the work of consolidation had been completed, the partition is to be carried out by the revenue agency. He

consequently directed that in case any partition was desired, the petitioners should move the revenue Court for that purpose and no action was

possible in the application under Section 42 of the Act. In the earlier part of his order, the Additional Director observed as under :

I have perused the copy of the Missal Haqiat. In it, it is entered Mushtarka Malkan Hasab Rasad Khewat which means that the rightholder is

entitled to the share in proportion to his holding. Like this, whenever any rightholder moves the revenue authorities for partition of the Khata of

Mushtarka Malkan then the help of calculator should be taken to find out his share in a minute

Aggrieved by this order of the Additional Director, the petitioners through this petition have prayed that order Annexure P4 be quashed and he

be directed to determine the share of the rightholders and carve out the Kurras for each of the shareholders.

The respondents were served in this case, but no written statement has been filed. None has even appeared on behalf of the respondents at the

time of hearing.

Learned counsel for the petitioners contends that the land forming Bachat Khata, which had been taken out of petitioner''s holdings by applying

pro rata cut and now entered in the revenue records as Mushtarka Malkan Va Deegar Haqdaran Hasab Raqba Khewat is in possession of the

rightholders and is liable to be partitioned by the consolidation authorities after determining the share of each shareholder.

I have given a careful thought to the contention raised by the learned counsel. Learned Additional Director has nowhere recorded a finding that

the land forming Bachat Khata and entered as Mustaraka Malkan Va Deegar Haqdaran Hasab Raqba Khewat is liable to be partitioned amongst

the rightholders. It was primarily for the Additional Director to record a firm finding as to whether this Khewat was liable to be partitioned and if

so, what are the shares of the shareholders and in what manner it was to be partitioned. The learned Additional Director in the impugned order,

Annexure P4 has directed the petitioners to seek their redress before the revenue authorities since the consolidation operations had taken place in

the village and completed much earlier. The learned Additional Director was certainly not right in directing the petitioners to approach the revenue

authorities for seeking partition and determination of shares of the rightsholders with the help of calculator, as in my view, this is not a matter with

which the revenue authorities are concerned. According to the petitioners, the land in question form Bachat Khata which was taken out of their

holding by imposing pro rata cut. If that is so, it is exclusively the domain of the consolidation authorities to demarcate the shares of the rightholders

and specify in the revenue record.

Learned counsel for the petitioners, however, strenuously argued that it is clearly decipherable from the order, Annexure P4 that the land

forming Bachat Khata is liable to be partitioned and the rightholders are entitled to their shares in proportion to their holdings. I do not find any

merit in the contention. As already noticed, the Additional Director has not returned a finding much less a firm finding that the Bachat Khata

entered in the revenue record as ''Mushtarka Malkan Va Deegar Haqdaran Hasab Raqba Khewat'' is liable to be partitioned, what to talk of

determining the shares of the rightholders and the manner for effecting partition.

For the foregoing reasons, the order of the Additional Director, Annexure P4 is set aside and the case is remitted back to the Additional

Director, Consolidation of Holdings, Haryana, Rohtak to decide the matter afresh in accordance with law after affording due opportunity of being

heard to the parties concerned. In case he comes to the conclusion that the Khewat in question is liable to be partitioned, he or any authority

subordinate to him shall determine the shares of the rightholders and the manner in which the partition is to be effected. I have no manner of doubt

that the entire exercise will be completed by the consolidation authorities within six months from the date of receipt by them a copy of this order.

The writ petition is allowed accordingly. No order as to costs.