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2016 DIGILAW 1204 (HP)

Balwant Singh v. Director Consolidation

2016-06-28

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. By way of present writ petition, petitioner has invoked extraordinary jurisdiction of this court under Article 226 of the Constitution of India praying therein that writ of certiorari may be issued and orders (Annexures P-2 and P-3) may be quashed and set aside. 2. Briefly stated facts necessary for the adjudication of the case are that respondents No. 3 and 4 filed an application under section 54 of the Himachal Pradesh (Consolidation and Prevention of fragmentation) Act, 1971 (in short the Act of 1971) averring therein that when consolidation operations were completed in Village Chownki Mauza Milkh, Tehsil Nurpur, District Kangra, in the Year, 2000- 01, they were not given any passage to approach their land comprised in Khasra No.472. The Director Consolidation, taking cognizance of the averments contained in the application filed under Section 54 of the Act of 1971, issued notices to the petitioners and during the pendency of the application, respondent No.1 directed the Consolidation Officer, Hamirpur, HP, to reach/visit the spot and submit his report. Record further reveals that Director Consolidation after receipt of the record from the field Agency allowed the revision petition of the respondents vide order dated 27.12.2008 and remanded the case back to Consolidation Officer, Hamirpur, with the directions to visit the spot and provide passage to the respondents by showing the same in red line. Consolidation Officer, pursuant to the order supra visited the spot and passed order dated 13.3.2009. 3. Feeling aggrieved and dis-satisfied with the order dated 13.3.2009, the petitioners approached this Court by way of present writ petition seeking quashment of the aforesaid orders passed by Director Consolidation as well as Consolidation Officer, Hamirpur. 4. Mr. Y.P. Sood, Advocate, appearing for the petitioners vehemently argued that orders dated 28.1.2009 and 13.3.2009 passed by the Director, Consolidation of Holdings as well as Consolidation Officer, Consolidation of Holdings, HP are illegal and without any jurisdiction and as such, same are required to be quashed and set-aside. He vehemently contended that application preferred under Section 54 by the present respondents No.3 and 4, could not be entertained as same was not maintainable after a delay of 7-8 years. He vehemently contended that application preferred under Section 54 by the present respondents No.3 and 4, could not be entertained as same was not maintainable after a delay of 7-8 years. He also contended that keeping in view the nature of dispute raised by respondents No. 3 and 4 in their application filed under Section 54 of the Act, 1971, matter could not be decided by respondent No.1 while exercising the powers under Section 54, since he had no jurisdiction to go into the question of providing any passage by passing any order of providing passage to the respondents in exercise of power under Section 54 of the Act. He forcefully contended that respondent No.2 has in fact exercised the jurisdiction, which was not vested in him and as such order passed by him deserves to be quashed and set-aside. 5. During arguments having been made by him, he invited attention of this Court to Annexure P-4 to demonstrate that w.e.f. 2.3.2009, Consolidation Officer had no power to deal with the cases of Consolidations. He contended that w.e.f. 2.3.2009, all the powers of Consolidation Officer had been delegated upon the Tehsildar concerned of the respective jurisdiction for disposal of the cases pending for disposal with the Consolidation Officer under the provisions of the Act with immediate effect. In view of the aforesaid background, he prayed that petition may be allowed and AnnexureP-2 may be quashed and set-aside. 6. Mr. Rajat Chauhan, Law Officer, representing the State supported the orders passed by the Courts below. He forcefully contended that the Director, Consolidation of Holdings has got full powers under Section 54 of the Act to decide the case and since the revenue village was not denotified at the time of filing any revision petition, it was rightly entertained by the Director, Consolidation of Holdings in terms of the provisions of the Act and rules. He strenuously argued that since matter qua the hindrance of path to the land of respondents was brought to the notice of concerned authorities, authorities while exercising powers under the Rules, rightly directed the Consolidation Officer to visit the spot to mark the path with red line. 7. I have heard learned counsel for the parties as well carefully gone through the record. 8. 7. I have heard learned counsel for the parties as well carefully gone through the record. 8. It is undisputed that respondents No.3 and 4 by way of application filed under Section 54 of the Act, approached the Director, Consolidation of Holdings stating therein that in the Year, 2001 consolidation took place at Village Chowni Mauza Milkh, Tehsil Nurpur District Kangra, which was subsequently confirmed. Respondent No.1 specifically pleaded before the Director Consolidation that prior to the consolidation, respondent as well as present petitioners were joint owner in possession of the land comprised in Khasra No. 399 old. 9. The petitioners prayed that they have been deprived of their valuable right of passage by Respondent No.1. Director Consolidation vide order dated 27.12.2008 allowed the revision petition preferred by respondents No. 3 and 4. Operative part of order passed by Director Consolidation is reproduced herein-below: “The request of the petitioner to grant him 4 to 5 meters passage cannot be considered nor any amendment is required to provide approach road from the land of the respondents. The case is remanded back to the C.O. Hamirpur with the directions that in case there is no other approach to the land of the petitioner the same may be provided to him by showing the same in “red line” as per the provisions of the scheme in the presence of both the parties. The C.O. should also take into consideration that it does not have any affect on the permanent structure constructed by the petitioner and others.” Further perusal of the record suggests that pursuant to the order dated 28.2.2009, Consolidation Officer, Hamirpur, after visiting the spot held that respondent applicant require passage to approach their land and accordingly, passage measuring 34+21+10 meters showed in red Ink on the north side of Khasra No. 473 and 472. Now the question, which needs to be determined by this Court is whether Consolidation Officer, Hamirpur was competent to pass orders dated 13.3.2009 or not, especially in the light of notification dated 2.3.2009 issued by Govt. of Himachal Pradesh, Department of Reveune. Now the question, which needs to be determined by this Court is whether Consolidation Officer, Hamirpur was competent to pass orders dated 13.3.2009 or not, especially in the light of notification dated 2.3.2009 issued by Govt. of Himachal Pradesh, Department of Reveune. It would be apt to reproduce notification herein-below “……………In supersession of all previous notification issued in this behalf and in exercise of the powers conferred upon him under Section 52 of the Himachal Pradesh (Consolidation and Prevention of Fragmentation) Act, 1971, the Governor, Himachal Pradesh is pleased to delegate the powers of Consolidation Officer upon Tehsildars concerned in their respective jurisdiction for disposal of cases pending for disposal with the Consolidation Officer under the provisions Act, ibid, with immediate effect………” Perusal of the notification (supra) clearly suggests that w.e.f. 2.3.2009, all the powers of Consolidation Officers were ordered to be conferred upon the Tehsildars concerned of their respective jurisdiction for disposal of cases pending for disposal with the Consolidation Officer under the provisions of the Act. 10. Admittedly, in the present case, Consolidation Officer to whom, Director Consolidation, respondent No.1 vide order dated 27.12.2008 remanded the case back with the direction to visit the spot and grant 4-5 meters passage to the respondents did not decide the case on or before 2.3.2009 i.e. date of notification. Since matter was pending for disposal with the concerned Consolidation Officer under the Act on 2.3.2009, this Court is of the view that Consolidation Officer had no authority/jurisdiction to adjudicate the matter on 13.3.2009 after issuance of aforesaid notification. Since after 2.3.2009, all powers of Consolidation Officers were conferred upon the Tehsildar in their respective jurisdiction for disposal of case pending for disposal before the Consolidation Officer under the Act, the Consolidation Officer, Hamirpur, had no jurisdiction, whatsoever, to decide the matter at hand and, as such, any order passed by Consolidation Officer in pending matters after 2.3.2009, deserves to be quashed and setaside. 11. Consequently, in view of the discussion made hereinabove, this Court is of the view that order dated 13.3.2009 passed by Consolidation Officer in the present case, was without any jurisdiction and, as such, same is quashed and set aside. Needless to say that Tehsildar concerned is competent to pass orders, if any, in the present case, in terms of notification dated 2.3.2009. Accordingly, the writ petition is disposed of with pending applications, if any.