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2008 DIGILAW 1344 (PNJ)

Balwinder Singh v. Director Land Record

2008-08-11

DAYA CHAUDHARY, SATISH KUMAR MITTAL

body2008
Judgment Satish Kumar Mittal, J. 1. This order shall dispose of C.W.P. Nos. 16269 of 2006 and 1235 of 2007 which have been filed by the petitioner with regard to the same property. 2. In this case, vide order dated 29.5.1962, passed by the Settlement Officer, Consolidation of Holdings, a two karms path was carved out for ingress and outgress of respondents No. 3 to 5. For carving out of the said path, 13 marlas land of Ujagar Singh, father of the petitioner was taken away, Ujagar Singh remained alive up to 1991 but he did not challenge the said order. After his death, the petitioner filed an appeal against the said order under Section 21(4) and (6) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act) before the Additional Director, Consolidation. The said appeal was dismissed on 18.11.2005 while observing as under: ...At the time of consolidation land of the respondent has cut according to his share thus he is entitled to path in the whole area. That the Khauni Pamaish has prepared qua the share holders. There is no deficiency has seen to the appellant. Due to that reason S.O. has not included any area in favour of Ujjagar Singh in the impugned order. He stated that order is not ex parte rather there is already intimation of this order and the father of the appellant has present at the time of proclamation, thus, there is no right to file an appeal after the expiry of 43 years. That the civil suit which was contested between the party in that suit appellant has himself admitted in para No. 3 regarding appeal thus he cannot take this plea at this stage qua the order is not in his knowledge. Appellant has also been using this path which has left share-aam path at time of consolidation specially appellant is the successor of his father. There is no proceeding initiated by their father during his lifetime. Thus the order is binding upon the appellant. He made a request in the end that there is no weight in the appeal because appeal was filed after 40 years thus no ground is made out, thus to be dismissed and the impugned order to be remained intact, because the order was passed by the S.O. after hearing both the parties vide order dated 29.5.1962. He made a request in the end that there is no weight in the appeal because appeal was filed after 40 years thus no ground is made out, thus to be dismissed and the impugned order to be remained intact, because the order was passed by the S.O. after hearing both the parties vide order dated 29.5.1962. Thus, there is no necessity to interfere in it, thus, the appeal to be dismissed and the order under appeal is maintained intact. Against the said order, the petitioner filed a petition under Section 42 of the Act which has also been dismissed by the Director, Consolidation vide order dated 24.11.2005. The petitioner has challenged these orders in the writ petition. 3 In the second writ petition, i.e. C.W.P. No. 1235 of 2007, the petitioner has challenged the part of the order dated 27.9.2006 passed by the Director, Consolidation, whereby a petition filed by the petitioner under Section 42 of the Act against the order dated 3.6.2005 passed by the Consolidation Officer, granting warrant of possession in favour of respondent No. 3 to 5 by directing the petitioner to clear the passage and deliver possession of the same, has been dismissed. 4. As far as the first writ petition i.e. C W.P. No. 16269 of 2006 is concerned, counsel for the petitioner could not point out any illegality in the impugned orders passed by the Assistant Director, Consolidation as well as the Director, Consolidation because the father of the petitioner never filed any appeal against the order dated 29.5.1962 passed by the Settlement Officer, Consolidation of Holdings and the appeal filed by the petitioner after more than 43 years was rightly dismissed. 5. With regard to the second petition i.e. C.W.P. No. 1235 of 2007, counsel for the petitioner contends that the Consolidation Officer cannot deliver possession of the disputed passage to respondents No. 3 to 5 after expiry of a long period. In this regard, learned Counsel placed reliance upon the decision of the Supreme Court in Mange Ram v. Financial Commissioner and Ors. 2003(1) P.L.J. 43. 6. After hearing the counsel for the parties and going through the impugned orders and the reply filed by respondents No. 3 to 5 we do not find any merit in the contention of the counsel for the petitioner. 2003(1) P.L.J. 43. 6. After hearing the counsel for the parties and going through the impugned orders and the reply filed by respondents No. 3 to 5 we do not find any merit in the contention of the counsel for the petitioner. Undisputedly, vide order dated 29.5.1962 a passage was carved out during the consolidation which was to be used by respondents No. 3 to 5 for ingress and outgress to their land. The said passage cannot be allowed to be encroached upon by the petitioner as the said order had become final. The petitioner has also filed a civil suit, copy of which has been annexed with the reply, in which he has admitted that a passage of two karms, which abuts to the metal road from Jandiala to Khadoor Sahib, is in existence since 1962 which was exclusively carved out for the land of respondents No. 3 to 5. If the petitioner has encroached upon the passage the consolidation authorities are going to remove that passage in the execution, in our opinion, such an order passed by the Consolidation authorities cannot be quashed in writ jurisdiction. The judgment relied upon by the counsel for the petitioner is not applicable in the facts and circumstances of the case. The said judgment does not pertain to the passage. In the said judgment, some land was allotted to a party during the consolidation, but the said party filed the execution application for delivery of possession after almost 11 years. In that situation, the application filed by the party for obtaining possession of the land in question was dismissed on the ground of delay and laches. But, in the instant case, admittedly the passage that was carved out during the consolidation for ingress and outgress of respondents No. 3 to 5, the same is existing as per the admission of the petitioner. If the said passage is encroached upon, the Consolidation authorities cannot be prohibited from passing the order for delivery of possession. 7. In view of the above, we do not find any ground to quash the impugned orders. Hence, both the petitions are dismissed.