Daya Nand v. Joint Secretary, Govt. Of Haryana, Irrigation Deptt. , Chandigarh
2000-03-28
N.K.SODHI, N.K.SUD
body2000
DigiLaw.ai
Judgment N.K.SODHI, J. 1. Daya Nand and others have filed this petition under Article 226 of the Constitution challenging the order dated 12-2-1999 passed by the Joint Secretary, Government of Haryana, Irrigation Department exercising the powers of the State Government under Sec. 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short the Act). By this order the State Government allowed the application filed by the Municipal Committee, Barwala and provided a path to its lands as shown in yellow colour in the site plan which is Annexure P-1 with the writ petition. Consolidation of holdings in the village was carried out in the year 1959. It is common case of the parties that the Municipal Committee, Barwala (hereinafter called the Committee) is the owner of land comprised in Rectangle 361, killas No. 2 to 9, 10/1 and 12 to 15. It filed an application under Sec. 42 of the Act pleading that no path had been provided to the aforesaid area during the consolidation proceedings and that the Committee and its lessees had been using the path which is in existence on the northern side of killa No. 6/1 in Rectangle 362 shown yellow in colour in the site plan. It was further pleaded that this path which passes through the land of the petitioners herein was being used with their consent and that since they were now objecting to the use of this passage, it became necessary to approach the State Government for providing a path to the lands of the Committee. The application was contested by the petitioners. The Joint Secretary after hearing both sides and on an examination of the records including the scheme of consolidation found that no path had been provided to the lands of the Committee during the consolidation proceedings which was a mistake of the department. Since it was necessary that every scheme of consolidation should provide a path to the lands of all the land owners the prayer made in the application was allowed and the path shown yellow in colour has been sanctioned which passes through the land of the petitioners. 2.
Since it was necessary that every scheme of consolidation should provide a path to the lands of all the land owners the prayer made in the application was allowed and the path shown yellow in colour has been sanctioned which passes through the land of the petitioners. 2. The first ground on which the impugned order is challenged before us is that since the consolidation proceedings came to an end in the year 1959 the authorities under the Act became functus officio thereafter and could not entertain the application under Sec. 42 of the Act. Learned counsel for the petitioners has relied upon a Division Bench judgment of this Court in Banarsi Dass V/s. Director, Consolidation of Holdings, 1995 PLJ 314 in support of this contention. We find no merit in this contention. Sec. 42 of the Act provides that the State Government may at any time examine the legality or propriety of any order passed, scheme prepared or confirmed or re-partition made by any officer under the Act and may pass order as it may think fit in the circumstances of the case. The only embargo put on the powers of the State Government is that it shall not vary or reverse any order or scheme or re-partition under the Act without giving the parties interested notice to appear and an opportunity to be heard. The powers of the State Government are wide enough and can be exercised at any time. It cannot, therefore, be said that the authorities under the Act had become functus officio after the finalisation of the scheme of consolidation. In Banarsi Dass case (supra) an application for a path had been made by a subsequent purchaser who was neither a right holder nor a party interested at the time of consolidation of holdings in the village. Since there was a change of land owners after the consolidation when the original land owner sold the land to other parties in small pieces this court observed that any dispute about the title of the land or other rights in the land including the right to claim a path by a subsequent vendee from the original owner could be raised before the revenue authorities or in a civil court but not before the State Government under Sec. 42 of the Act.
It was in this context that the learned Judges observed that the consolidation authorities had become functus officio after the records were consigned to the record room. This judgment, in our opinion is of no assistance to the petitioners herein because the Committee inherited the land from the Gram Panchayat in which the land vested beingbachat land.The Committee is not a subsequent purchaser. The present is a case where no path had been provided to the land in dispute right from the very beginning. 3. It was then contended by the learned counsel for the petitioners that the application under Sec. 42 of the Act was not maintainable because the Committee had not challenged any order passed under the Act nor was the application against any scheme prepared or confirmed or against any re-partition made under the Act. Reliance in this regard has been placed on a single Bench judgment of this Court in Ramji Dass V/s. State of Punjab, 1969 Pun LR 823. We find no force in this contention either. The Committee had challenged the scheme of consolidation which did not provide a path to its lands which, in our opinion, could be challenged before the State Government. The Joint Secretary while allowing the application obviously modified the scheme to the extent that a path has been provided to the lands of the Committee. In Ramji Dasss case (supra) an application under Sec. 42 of the Act had been filed complaining against an apprehension about an order which was likely to be passed in the partition proceedings. Since no order had been passed nor was any scheme challenged this Court rightly observed that the application was not maintainable. This is not the case before us. 4. It was then urged that the application filed by the Committee under Sec. 42 of the Act was barred by limitation and the same could not be entertained by the State Government after a lapse of almost 40 years after the finalisation of the consolidation proceedings. Counsel for the petitioners placed reliance on the judgments of the Apex Court in Loku Ram V/s. State of Haryana, 1999 (1) PLJ 1, Gram Panchayat, Kakran V/s. Additional Director of Consolidation 1997 (2) PLJ 375 and also on a judgment of this Court in Lakshmi Bai V/s. The Additional Director, Consolidation of Holdings 1968 PLR 37. 5.
Counsel for the petitioners placed reliance on the judgments of the Apex Court in Loku Ram V/s. State of Haryana, 1999 (1) PLJ 1, Gram Panchayat, Kakran V/s. Additional Director of Consolidation 1997 (2) PLJ 375 and also on a judgment of this Court in Lakshmi Bai V/s. The Additional Director, Consolidation of Holdings 1968 PLR 37. 5. In Gram Panchayat Kakrans case (supra), the learned judges observed that a party aggrieved is required to move the appropriate authority for relief within a reasonable time and that an application under Sec. 42 of the Act cannot be entertained after an unreasonably long lapse of time. In the case before us the Gram Panchayat and thereafter its successor the Committee had been leasing out the land in dispute to different persons on yearly basis and the tenants were using the path which is shown yellow in colour in the site plan. The petitioners who are the owners of the land comprised in killa No. 362/6/1 did not object to the path being used by the lessees of the Committee. It was pleaded in the application that it was sometime before the filing of the application under Sec. 42 of the Act that the petitioners started objecting to the use of the path passing through their land which necessitated the filing of the application. In the circumstances, it cannot be said that the committee approached the State Government after an unreasonably long delay. It approached the State Government soon after the petitioners started objecting to the use of the path and it was then alone that a cause accrued to the committee to make such an application. As is clear from the site plan there is no other approach to the land owned by the Committee and no one can virtually reach the land without a path being provided. This should have been done at the time of the preparation of the scheme of consolidation. As already observed, the path now provided was being used to which the petitioners did not object earlier. 6. Loku Rams case (1999) 1 Punj LJ 1 (SC) (supra) is under the Haryana Ceiling on Land Holdings Act where the expression "at any time" used in Sec. 18(6) of that Act has been interpreted to mean that power has to be exercised within a reasonable time.
6. Loku Rams case (1999) 1 Punj LJ 1 (SC) (supra) is under the Haryana Ceiling on Land Holdings Act where the expression "at any time" used in Sec. 18(6) of that Act has been interpreted to mean that power has to be exercised within a reasonable time. It is true that the application under Sec. 42 of the Act has to be filed within a reasonable time and in the instant case we have found that it was filed after the petitioners started objecting to the use of the path. There was, thus, no delay as such in the filing of the application. 7. In Lakshmi Bais case (1968 Pun LR 37) (supra) a petition under Sec. 42 of the Act had been entertained beyond the period of six months which is prescribed for a petition filed against any order passed by an authority under the Act and while granting redress to the petitioner therein in a time barred petition, compensation was awarded to the opposite party. This consideration was held to be extraneous and the order of the authority under Sec. 42 of the Act was set aside. This case, in our opinion, has no applicability to the facts of the case in hand. Moreover, the plea of limitation does not seem to have been raised before the State Government and in any case, the delay, if any, has been condoned by the Joint Secretary and we are not inclined to interfere with the order. 8. Before concluding, we may observe that when this petition came up for motion hearing before us on 7-9-1999 the learned counsel for the petitioners submitted that his clients would be satisfied if the proposed path is shifted to the southern side of the land in killa No. 362/6/1. Since the path now provided to the Committee bifurcates the land of the petitioners, we were inclined to remit the case back to the State Government to consider the possibility of shifting the path on the southern side of killa No. 6/1 in Rectangle 362 so as to avoid bifurcation but the learned counsel did not agree to this course because by then he had been instructed to contest the case on merits. It was stated before us that the petitioners were not inclined to allow any path to the committee from their land.
It was stated before us that the petitioners were not inclined to allow any path to the committee from their land. We, therefore, heard the counsel on the contentions raised by him which have been noticed above. 9. In the result, there is no merit in the writ petition and the same stands dismissed leaving the parties to bear their own costs.Petition dismissed.