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2013 DIGILAW 1115 (PNJ)

Bhagwana v. State of Haryana

2013-08-21

G.S.Sandhawalia, Jasbir Singh

body2013
JUDGMENT Mr. Jasbir Singh, J. (Oral):- This writ petition has been filed primarily to lay challenge to an order dated 5.11.1993 (Annexure P8) passed by respondent No.2- Director, Consolidation of Holdings, Haryana remitting the matter to the Consolidation Officer, Hisar, to allot land to the respondents No.4 to 28. Further prayer has been made that judgments passed by this Court in Civil Writ Petition No. 2097 of 1965 on 26.2.1970 (Annexure P6) and in Civil Writ Petition No. 3991 of 1993 dated 20.4.1993 (Annexure P7) be declared not binding upon the petitioners because they were not parties to those writ petitions. 2. As per facts on record, the private respondents are claiming ownership in Khewat No. 3 measuring 542 bighas 7 biswas. To say that it was their ownership, reliance was placed upon entries made in copy of jamabandi for the year 1960-61. 3. It is apparent from the above said document that the land measuring 296 bighas 1 biswa is shown as Banjar Quadim, Gair Mumkin Johar etc. and it was not cultivable land. 4. During consolidation proceedings, the Additional Director, Consolidation of Holdings, Patiala vide order dated 26.3.1965 (Annexure P5) gave a finding that the land measuring 446 bighas 12 biswas was being used for common purposes and it would vest in Gram Panchayat except 30 bighas of land, out of khasra No. 388, which was under cultivation before 4.5.1961. That order was passed on an application filed by the predecessor-in-interest of the petitioners claiming ownership of the land falling in khewat No.3 measuring 542 bighas 7 biswas. The predecessor-in-interest of the petitioners came to this Court by filing Civil Writ Petition No. 2097 of 1965 impugning the order dated 26.3.1965. In that writ petition, neither the Gram Panchayat nor any right holder from the village was impleaded as a party. Writ petition of the private respondents/their predecessors-in-interest, to claim ownership of the land falling in khewat No.3 was allowed by this Court vide order dated 26.2.1970 (Annexure P6) primarily by placing reliance upon a Civil Court judgment dated 8.4.1960 (Annexure R2) and Appellate Court judgment dated 1.12.1960 (Annexure R3) and this Court’s judgment dated 22.9.1971 (Annexure R4). It was opined in the judgment dated 26.2.1970 that once a Civil Court has held that the land does not vest in the Gram Panchayat contrary finding cannot be given by the Consolidation Authorities. It was opined in the judgment dated 26.2.1970 that once a Civil Court has held that the land does not vest in the Gram Panchayat contrary finding cannot be given by the Consolidation Authorities. It was further said that let pro-rata cut be imposed upon all the right holders to retrieve land, to be used for common purposes in the village. In a way, that order was passed against the entire proprietary body without their being present in this Court. When Consolidation Authorities failed to act upon the judgment dated 26.2.1970, Balwant Singh, predecessor-in-interest of one of the respondents in this writ petition, approached this Court by filing Civil Writ Petition No. 3991 of 1993. That writ petition was disposed of by passing the following order on 20.4.1993 (Annexure P7): “Learned counsel for the petitioner submits that the case of the petitioner No. 181 of 1978 is still pending with the respondents awaiting decision. The respondents are directed to decide the case No. 181 of 1978 of the petitioner expeditiously preferably within six months. With the above direction, the writ petition is disposed of.” 5. Thereafter, respondent No.2 passed the impugned order on 5.11.1993 (Annexure P8) mainly on a ground that it was so directed by the High Court vide order dated 26.2.1970. The matter was remitted to the Consolidation Officer, Hisar to retrieve land ‘pro-rata’ from the right holders and to be used for common purposes in the village and the land in dispute be allotted to the private respondents. 6. It is also necessary to mention here that Gram Panchayat has also filed Civil Writ Petition No. 3204 of 1970 with a prayer that order passed in Civil Writ Petition No. 2097 of 1965 on 26.2.1970 be recalled; it be impleaded as a party to that writ petition and the matter be heard on merits. That writ petition was dismissed on 14.1.1972 (Annexure R1). That order was also passed taking note of earlier orders passed by the Civil Court in the litigation initiated by the Gram Panchayat claiming ownership of the land in dispute. 7. We have heard counsel for the parties and have also perused judgment of the Civil Court upon which reliance was placed upon by this Court when order dated 26.2.1970 (Annexure P6) was passed and also by respondent No.2 when order was passed on 5.11.1993 (Annexure P8). 8. 7. We have heard counsel for the parties and have also perused judgment of the Civil Court upon which reliance was placed upon by this Court when order dated 26.2.1970 (Annexure P6) was passed and also by respondent No.2 when order was passed on 5.11.1993 (Annexure P8). 8. It is evident from an order dated 8.4.1960 (Annexure R3) that the Gram Panchayat filed a suit claiming declaration of title of the land measuring 296 bighas 1 biswa. Further, injunction was sought directing the predecessor-in-interest of the private respondents not to interfere in the land in dispute by cutting trees and grass etc. It is also on record that despite many opportunities given, the Gram Panchayat failed to lead any evidence. Faced with this situation, the Civil Court closed its evidence and decided the suit in terms of the provisions of Order 17 Rule 3 CPC. It is on record that Gram Panchayat went in appeal against that order. Appeal was partly allowed. However, above order was not quashed. The Gram Panchayat was provided an opportunity of being heard and on the basis of no evidence, ultimately the suit was dismissed on 1.12.1960. The Gram Panchayat also lost in Regular Second Appeal No. 248 of 1961 which was filed against the above said order. 9. Perusal of the judgment passed by the Civil Court indicates that no finding was given qua ownership of land in dispute in favour of the predecessor-in-interest of the petitioners. When the Gram Panchayat failed to produce evidence, it was closed and the suit was dismissed. Neither in the civil suit nor before the Additional Director, Consolidation of Holdings, when order was passed on 26.3.1965 (Annexure P5) the right holders were impleaded as party. They were also not impleaded as party when order was passed in Civil Writ Petition No. 2097 of 1965. The right holders are the effected parties. As per ratio of the above orders, a pro-rata cut needs to be imposed upon them to compensate the respondents for the land falling in khewat No. 3 which was utilized for common purposes in the village. At no point of time, an opportunity of hearing was given to them. The right holders are the effected parties. As per ratio of the above orders, a pro-rata cut needs to be imposed upon them to compensate the respondents for the land falling in khewat No. 3 which was utilized for common purposes in the village. At no point of time, an opportunity of hearing was given to them. When they pleaded their case before the Additional Director, Consolidation of Holdings, he also nonsuited them vide order dated 5.11.1993 stating that in the face of order passed by this Court on 26.2.1970 (Annexure P6), no option was left except to retrieve land from the right holders and allot it to the predecessors-in-interest of the private respondents. It is a case of violation of principles of natural justice. 10. Under the circumstances, we allow this writ petition and the order dated 5.11.1993 (Annexure P8) is quashed. The matter is remitted to the Commissioner, Hisar Division, Hisar (exercising powers under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948) to hear the matter afresh. When providing hearing to both the parties, the said officer shall look into the effect of Civil Court judgment and the judgments passed by this Court upon which reliance has been placed upon by the private respondents. The view point of the petitioners shall also be heard and by making reference to the revenue record, a finding be recorded qua the land in dispute. --------0.B.S.0------------