Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 279 (PNJ)

Pale Ram v. State of Haryana

2013-03-01

RAJIVE BHALLA, REKHA MITTAL

body2013
JUDGMENT Mrs. Rekha Mittal, J.: - The petitioner prays for issuance of a writ of certiorari for quashing order dated 15.7.2004 (Annexure P-13) passed by the Director, Consolidation Department, Haryana, Chandigarh and issuance of a direction to respondent Nos. 1 and 3 to 7 to get encroachments made by the private respondents on the 33 feet road bearing Khasra No. 113, removed. 2. The petitioner filed Civil Writ Petition No. 16687 of 2000 to get the 33 feet wide road demarcated as per Government approved plans. In compliance with order dated 16.12.2000 passed in the said writ petition, the Naib Tehsildar with help of the patwari conducted a demarcation and submitted his report that 19 villagers have encroached upto 3 to 8 feet on land, meant for a road. After demarcation, as no steps were taken for removal of encroachments, the petitioner filed Civil Writ Petition No. 6390 of 2001 for a direction to the official respondents to get the encroachments removed. The petition was disposed of vide order dated 28.5.2001 with a direction to remove encroachments within a period of three months. Notice was isued to the encroachers by the Executive Engineer, Provisional Division No. 1, PWD (B&R) Branch, Panipat, to vacate public land. Respondent Nos. 9 to 23 challenged the notice by way of Civil Writ Petition No. 9725 of 2001. The said petition was disposed of with a direction to Tehsildar, Israna, to carry out demarcation within a period of two months and till that time not to demolish the property of the respondents (petitioners in that writ petition). The petitioner filed Contempt Petition No. 1438 of 2002 for non-compliance of the directions issued by this Court in Civil Writ Petition No. 6390 of 2001. After issuance of show cause notice in the contempt petition, Naib Tehsildar, Israna, conducted demarcation on 10.7.2003. As per reply filed in the contempt petition, 15 persons had encroached upon pucca road in Khasra No. 113. In the contempt petition, impugned order dated 15.7.2004, passed by the Director, Consolidation Department, Haryana, was produced, according to which encroachments on the land have been regularized. The contempt petition was disposed of with liberty to the petitioner to resort to appropriate remedy against order dated 15.7.2004. The petitioner filed CWP No. 10329 of 2008 which was dismissed as withdrawn with liberty to file a fresh petition. Hence the present writ petition. 3. The contempt petition was disposed of with liberty to the petitioner to resort to appropriate remedy against order dated 15.7.2004. The petitioner filed CWP No. 10329 of 2008 which was dismissed as withdrawn with liberty to file a fresh petition. Hence the present writ petition. 3. Counsel for the petitioner submits that consolidation in village Bandh, Tehsil Israna, District, Panipat, took place in the year 1962-63. As per documents prepared during consolidation, the width of the village road, in dispute, is 6 karams. The Director Consolidation has committed a grave illegality in entertaining the petition of private respondents after a delay of 40 years, particularly, in the absence of any explanation, much less satisfactory, for the delay. It is further argued that the Director, Consolidation had no jurisdiction to regularize the encroachments on the road, earmarked during consolidation proceedings. 4. Counsel for the contesting respondents submits that the houses of the respondents are in existence prior to consolidation in the village. It is further argued that as the respondents have not encroached upon any part of the road, earmarked on phirni No. 113, the Director, Consolidation, has rightly held in favour of the respondents, while regularizing the existing road. We have heard counsel for the parties, perused the pleadings as well as the impugned order. 5. The only question that arises for consideration is whether the Director, Consolidation could regularize encroachments on an area clearly earmarked as a road during consolidation, by carving the width of the road, after 40 years. 6. Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as “the 1948 Act”) postulates that the State may “at any time” examine the correctness of any order passed or document prepared during consolidation. The expression “at any time” necessarily denotes ‘reasonable time’. 7. Reverting to the facts of the present petition. Admittedly, in the musavi, the width of the road, in question, has been recorded as 06 karams. In Civil Writ Petition No.10329 of 2008, this Court passed the following order on 16.12.2010:- “The original masavi produced by Sh. Kitab Singh, Assistant Consolidation Officer, Karnal, reveals that the village road was allotted a width of six karams during the consolidation. Admittedly, in the musavi, the width of the road, in question, has been recorded as 06 karams. In Civil Writ Petition No.10329 of 2008, this Court passed the following order on 16.12.2010:- “The original masavi produced by Sh. Kitab Singh, Assistant Consolidation Officer, Karnal, reveals that the village road was allotted a width of six karams during the consolidation. The Director, Consolidation has changed the width of road on the basis of the current situation to five karams so as to exclude land, which is in unauthorized occupation of the private respondents. Faced with the situation counsel for the private respondents prays for time to seek instructions. Adjourned to 23.12.2010.” 8. The private respondents contested the earlier writ petitions filed by the petitioner. They filed a writ petition giving challenge to the notice issued by the Executive Engineer, Provisional Division No. 1, PWD (B&R) Branch, Panipat, to vacate the public land but did not get any order in their favour. After having failed to get an order in their favour from a court and facing imminent danger of removal of encroachments made by them on a public road, they devised a plan to legitimize the encroachments and filed a petition under Section 42 of “the 1948 Act” after about 40 years of the conclusion of consolidation proceedings. 9. The Director Consolidation is empowered by Section 42 of “the 1948 Act” to correct an error in the consolidation scheme or documents prepared during consolidation. Admittedly, consolidation proceedings concluded in the revenue estate of village Bandh, Tehsil Israna District Panipat, in 1962-63. During consolidation, the village road was allotted a width of 6 karams. The Director Consolidation has reduced the width of the road to 05 karams without assigning any reason or pointing out any error or infirmity in the consolidation scheme or documents prepared during consolidation. An extract from the impugned order dated 15.7.2004 reads as follows:- “I am agree with the arguments of the counsel for the applicant and the statement of the Sarpanch of the Gram Panchayat. As per the report of Assistant Consolidation Officer, Karnal, the road exists on spot has been regularized, it is also ordered that remaining land adjoining to Abadi deh/Lal dora will be the ownership of provincial Government. The area of road having five karams is allotted to road out of Panchayat land and will be recorded in khewat of Gram Panchayat. As per the report of Assistant Consolidation Officer, Karnal, the road exists on spot has been regularized, it is also ordered that remaining land adjoining to Abadi deh/Lal dora will be the ownership of provincial Government. The area of road having five karams is allotted to road out of Panchayat land and will be recorded in khewat of Gram Panchayat. By considering all the above facts case is hereby accepted by following rectification. The consolidation scheme is amended to this extent accordingly. Copy of the decision be kept in both the files.” 10. A perusal of order passed by the Director Consolidation reveals that he has not assigned any reasons for condoning the delay of 40 years while accepting the plea of the contesting respondents. The order passed by the Director Consolidation, in our considered opinion, is illegal and nonest as it suffers from an assumption of jurisdiction that did not vest with him, ignored the delay of four decades in filing the petition under Section 42 of “the 1948 Act”, and reduced the area of a public road to legalize the encroachments made by the respondents. 11. The respondents have raised the plea that they constructed their houses prior to consolidation proceedings in the village. The respondents were provided an opportunity to prima facie establish their plea that they constructed their houses before conclusion of consolidation proceedings. The following order was passed on 13.12.2012:- “ Counsel for respondent Nos. 11, 14 to 17 and 21 to 28 states that he is not in a position to produce any material on record to prima facie prove that houses were in existence prior to consolidation. XXX XXX XXX” 12. Counsel for private respondents fairly conceded that the respondents are not in a position to produce any material much less a revenue document to prima facie prove that their houses are in existence prior to consolidation. The plea of the respondent that they constructed their houses prior to consolidation, is totally false. The respondents approached the consolidation authorities to legalize their illegal encroachments of the land earmarked for a road during consolidation. The Director, Consolidation has exceeded his jurisdiction and illegally passed an order in favour of the respondents. The order passed by the Director, Consolidation, cannot be sustained nor can the private respondents be allowed to perpetuate their illegal possession of the road bearing Khasra No. 113. 13. The Director, Consolidation has exceeded his jurisdiction and illegally passed an order in favour of the respondents. The order passed by the Director, Consolidation, cannot be sustained nor can the private respondents be allowed to perpetuate their illegal possession of the road bearing Khasra No. 113. 13. In view of what has been discussed hereinabove, the petition is allowed. Impugned order dated 15.7.2004 passed by the Director, Consolidation Department, Haryana, is set aside. The official respondent Nos. 1 and 3 to 7 are directed to get the illegal encroachments removed, after following due procedure, in accordance with law within a period of three months after receipt of a certified copy of this order.