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2016 DIGILAW 2361 (HP)

Hari Singh v. State of H. P.

2016-11-08

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, Judge. The present writ petition is maintained by the petitioner against the respondents praying therein for the following substantive relief : ?That the orders dated 25.3.2000 (Annexure P-2), 23.2.2001 (Annexure P-4) and 20.12.2014 (Annexure P-9), may kindly be quashed and set aside by issuing a writ of certiorari.? 2. As per the petitioner, the consolidation proceedings were initiated in Muhal Chail/51 by the consolidation staff in the year 1988 and the same was completed in the year, 1992. The petitioner and respondent No.3 are entitled to equal shares in the property of Shri Karam Singh. Prior to consolidation Khasra Nos.237 and 242 old, which were situated near the road side were given new Khasra No.237 are 190 and 191. Old Khasra No.242 is given new Khasra numbers i.e. 195 and 196. Khasra No.191 and 195 were allotted to the petitioner and Khasra No.190 and 196 were allotted to respondent No.3. The front side area of Khasra No.191 is 28 karam and front side area of Khasra No.195 is 11 karam, similarly the front side area of Khasra No.190 is 10 karam and Khasra No.196 is 30 karam. Total 40 karam front side area was allotted to respondent No.3 and total front side area of 39 karam was allotted to the petitioner. Respondent No.3 with malafide intention and ulterior motive without filing any objection and appeal directly filed revision under Section 54 of the Consolidation Act before the Director of Consolidation, Shimla, on 6.11.1999 after more than seven years. The Director of Consolidation, Mandi, remanded back the case to the Consolidation Officer, Mandi, to decide the case after verifying the spot and hearing the necessary parties, vide order dated 25.3.2000. It is further averred that respondent No.3 has sold her front side area allotted to her in Khasra No.190 to Smt. Chamba Devi and others through sale deed No.29 dated 1.2.1993. Respondent No.3 has further sold Khasra No.196 to Mitar Dev and others through sale deeds No.158 dated 19.4.1995, 102 dated 3.3.1994, 134 dated 8.6.1993 and 54 dated 6.2.2001 and mutation No.273, 381, 290, 292 and 452 have been attested after the sale of Khasra No.190 and 196, as a whole to Smt. Champa Devi and others. Respondent No.3 has further sold Khasra No.196 to Mitar Dev and others through sale deeds No.158 dated 19.4.1995, 102 dated 3.3.1994, 134 dated 8.6.1993 and 54 dated 6.2.2001 and mutation No.273, 381, 290, 292 and 452 have been attested after the sale of Khasra No.190 and 196, as a whole to Smt. Champa Devi and others. The Consolidation Officer, Mandi, without verifying the spot and considering the directions issued by the Director Consolidation dated 25.3.2000, allowed the case of respondent No.3 on 23.2.2001 and cancelled the area of Khasra No.191 measuring 0-2-6 and 195 measuring 0-5-5 total area measuring 0-7-11 bigha, which was allotted to the petitioner and allotted the same to respondent No.3 in lieu of Khasra No.38/1 measuring 0-7-11 bigha. The petitioner and respondent No.3 are entitled to equal shares in Khasra No.242 old, new Khasra Nos.195 and 196. Thereafter, the petitioner filed an appeal under Section 30 (3) of Consolidation Act, before the Settlement Officer (Consolidation), Bilaspur, H.P, against the order of Consolidation Officer, Mandi, dated 23.2.2001, the same was allowed, vide order dated 28.11.2001, in which the order dated 23.2.2001, was set aside by holding that respondent No.3 has already allotted 40 Karam land on the front towards road side, as there is total area of front 79 karam of the petitioner and respondent No.3, which was jointly owned and possessed by them before the consolidation proceedings. Thereafter, respondent No.3 filed an appeal under Section 30 (4) of the Consolidation Act, against the order dated 28.11.2001, which was dismissed by Additional Deputy Commissioner, Mandi, on 19.7.2013 confirming the order dated 28.11.2001. Respondent No.3 challenged the order dated 19.7.2013 by filing revision petition before respondent No.2, the same was allowed, vide order dated 20.12.2014. 3. Respondents No.1 and 2 has not been filed reply to the petition. 4. In reply on behalf of respondent No.3, it is averred that the consolidation proceedings were carried out in the area, during the year 1992-93 and the Consolidation staff had prepared a scheme for carrying out the consolidation, wherein it has been provided that the land adjacent to the road would be allotted to the persons, who are in its possession. Replying respondent was in possession of the land adjacent to the road, as such the same was to be allotted to the replying respondent, but the same was wrongly allotted to the petitioner. Replying respondent was in possession of the land adjacent to the road, as such the same was to be allotted to the replying respondent, but the same was wrongly allotted to the petitioner. Khasra No.196 is not a part of Khasra No.242 and in fact is an independent number, which was exclusively in possession of the replying respondent, as such the same was allotted to the replying respondent. Khasra No.237 (old) is measuring 0-4-17 bigha and khasra No.242 (old) is measuring 0-13-10 bigha. After completion of the consolidation proceedings Khasra No.237 was renumbered as Khasra No.190 and 191. After consolidation proceedings Khasra No.242 was renumbered as Khasra numbers 194 and 195. From the perusal of Aks Musabi, it revealed that the front of Khasra No.190 is 10 Kara and the front of Khasra No.191 is 28 Karam. Similarly front of Khasra No.195 is 11 Karam. Khasra No.196 was in exclusive possession of the replying respondent and the front of Khasra No.29 karam. Before consolidation proceedings replying respondent was in possession of 23 Karam of land in front of the road in Khasra No.237 (190 & 191 new) and 11 karam of land in front of the road in Khasra No.242 (194 & 195 new). During consolidation proceedings, replying respondent was only allotted 10 karam of land, on the road front in Khasra No.237, as such there was a deficiency of 13 karam in the share of replying respondent of the land on the front of the road in Khasra No.237. Similarly, no land on the road head was allotted to the replying respondent in Khasra No.242, despite the fact that the replying respondent was in possession of 11 karam of land in this khasra number on the front of the road prior to the consolidation. Replying respondent was in actual physical possession of the land and even after completion of the consolidation proceedings, the petitioner does not interfere in the possession. Replying respondent remained under bonafide belief that since the scheme provided for the allotment of land in front of the road of the persons, who are in its possession, as such the same would have been given to her. Replying respondent remained under bonafide belief that since the scheme provided for the allotment of land in front of the road of the persons, who are in its possession, as such the same would have been given to her. The petitioner for the first time interfered in the peaceful possession of the replying respondent in the year 1999, at that time the replying respondent inspected the revenue record and she was surprised to know that the wrong entries have been made in the revenue papers with regard to her possession in Khasra No.191 (new) and Khasra No.195 (new). Respondent No.3 is an illiterate lady and was not aware about the entries changed during the consolidation proceedings and she came to know about the same only in the year 1999, when the petitioner interfered in her peaceful possession. Respondent No.3 was not aware about the illegality committed by the officials, as she remained under the bonafide belief that the possession on the road front would not be disturbed, as such the replying respondent was not filed objections under Section 30 (2) of the Consolidation Act. The possession of the land was with the replying respondent, but due to the fault of the officials of the consolidation department the entries in the revenue record were wrongly made, as such the replying respondent filed a revision petition before the Director, Consolidation of Holdings in the year 1999, the same was allowed, vide order dated 25.3.2000 and remanded the matter to the Consolidation Officer, Mandi. The petitioner never challenged the order dated 25.3.2000 before any Court and the same became final between the parties. The Learned Consolidation Officer, Mandi, visited the spot on 23.2.2001 in the presence of the parties and it was found that the replying respondent has been allotted 13 karam of less land in Khasra No.191 and 11 karam of less land in Khasra No.195 despite the fact that the replying respondent was in exclusive possession of the said land and she was entitled for the allotment of the same, as per the scheme. The present writ petition is not maintainable because the replying respondent has been allotted the share to which she was entitled, as per the scheme. The present writ petition is not maintainable because the replying respondent has been allotted the share to which she was entitled, as per the scheme. The consolidation staff while carrying out the consolidation proceedings had made a mistake which had resulted in loss of share to the replying respondent on the road head and the mistake of the Consolidation staff has been corrected by the Consolidation Officer, Mandi, while passing the order dated 23.2.2001. 5. I have heard learned counsel for the parties and have also gone through the record of the case minutely. 6. At this stage, the only dispute is with respect to the land to be allotted to the parties only on the basis of the value of the land adjoining to the road and not on the basis of production out of the land. It cannot be disputed these days that the land adjoining to the road is commercial land and the categories of the land, as in the earlier times of consolidation/partition were = vkBvkuk , = ckjkvkuk , = Nsgvkuk and 'one rupee’, even when the land was adjoining to the road. In the present case, the petitioner is claiming the land adjoining the road near to the land allotted to respondent No.3. 7. After going through the order dated 20.12.2014 passed by the learned Revisional Court, this Court finds that the learned Revisional Court has not taken into consideration these facts. It is true that at the time of allotment of the land in the partition or consolidation, the possession of the parties is to be protected. At the same point of time, if the scheme doesn't provides for the protection of the possession, the petitioner is entitled to the equal shares alongwith the road side. So, I find that the learned Revisional Court while answering the findings has not taken into consideration the scheme, which was prepared prior to the consolidation, but the said scheme has neither referred nor discussed in the judgment. When the rights of the parties decided on the basis of some document, it was incumbent upon the learned Revisional Court, to have discussed the scheme in brief, which was prepared. When the rights of the parties decided on the basis of some document, it was incumbent upon the learned Revisional Court, to have discussed the scheme in brief, which was prepared. At this stage, this Court finds that it is for the Revisional Court to come to the conclusion after reappreciating the scheme and the fact that in case, the scheme doesn't provide, the land of equal quantity i.e. the land near the road is required to be given to the parties equally, as has been done by the consolidation authorities at the additional stage and if there is scheme the learned Revisional Court is required to discuss the scheme in brief. At this stage, the matter requires appreciation of the document, as the parties looses his right to come to this Court by way of writ petition, this Court finds that the only order which can be passed at this stage is to direct the learned Divisional Commissioner, Mandi, to reconsider the case of petitioner and respondent No.3 afresh in view of the observation made hereinabove. 8. Resultantly, the impugned order dated 20.12.2014 passed by the learned Divisional Commissioner, Mandi, H.P, is ordered to be quashed and set aside with a direction to rehear the parties and to decide the revision petition afresh. Parties are directed to appear before the learned Divisional Commissioner, Mandi, H.P, on 5th December, 2016. Let a copy of this judgment be sent to the learned Divisional Commissioner, Mandi, for compliance. 9. In view of the above, the petition is disposed of, so also the pending application (s), if any. In the peculiar facts and circumstances of the case, parties are left to bear their own costs.