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2023 DIGILAW 1800 (PNJ)

Ram Mehar v. Commissioner Hisar Division Hisar

2023-05-17

KULDEEP TIWARI, SURESHWAR THAKUR

body2023
JUDGMENT Mr. Sureshwar Thakur, J. (Oral) Admittedly, the consolidation proceedings in the Mohal concerned, took place in the year 1960-61. It is also apparent upon a reading of the affidavit, as tendered before this Court by the Naib Tehsildar concerned, rather in pursuance to the hereinafter extracted directions made upon him on 23.2.2023, by this Court, that in the said relevant consolidation proceedings, a revenue rasta was carved, and, that it was of a dimension of 1 karam, and, also that the revenue rasta with the said dimension, is also yet existing at the site concerned. "On the subsequent date of hearing, the learned State counsel is directed to, on affidavit, to be sworn by the learned Collector of the revenue d1strict concerned, or, by the consolidation officer concerned, ensure that disclosures are made therein(s) that, in the consolidation scheme, which was prepared by the consolidation officer concerned, a revenue passage was carved for the benefit of all the stakeholders, besides, the said affidavit shall also carry a disclosure whether such a revenue passage was carved after permissible deduction(s) being made from the land holdings of the cultivator(s) concerned." 2. Be that as it may, the instant lis has a chequered h1story, as certain aggrieved, from the consolidation scheme, thus rather from the width of the said rasta, hence made a motion before the Settlement Officer concerned. Through a decision made on 7.3.1961 (Annexure P- 1), upon the relevant motion, to which appeal No. 103 became assigned, thereons the Settlement Officer concerned, proceeded to make amendments to the dimension of the revenue rasta, inasmuch as, his increasing its width from its recorded width of 1 karam to 2 karams. Subsequently, he proceeded to allow the said claim of the aggrieved stake holders concerned. 3. The aggrieved therefrom proceeded to institute there against an appeal (Annexure P-4) bearing case No.84 of 1990, before the Addl. Director, Consolidation, Haryana, Rohtak. On the said appeal as revealed by Annexure P-4, a verdict of remand was made to the Settlement Officer concerned. However, in the said order of remand, a direction was made upon the remandee authority, to consider the provisions of the scheme, while proceeding to make an adjudication upon the relevant lis. The order of remand became obeyed by the remandee authority, and, resulted in the drawing of Annexure P-5. However, in the said order of remand, a direction was made upon the remandee authority, to consider the provisions of the scheme, while proceeding to make an adjudication upon the relevant lis. The order of remand became obeyed by the remandee authority, and, resulted in the drawing of Annexure P-5. A reading of Annexure P-5, reveals that the Settlement Officer (Consolidation), thus agreed with the ordered amendments, to the consolidation scheme, as also to the subsequent thereto prepared revenue records, as initially became made through Annexure P-1. Resultantly, the aggrieved concerned, again preferred an appeal before the Asstt. Director of Consolidation of Holdings, Rohtak, who through Annexure P-6, again made an order of remand, thus with the same conditions as were carried in Annexure P-4. The said order of remand, resulted in the remandee authority, thus drawing Annexure P-7, whose perusal again reveals, that the amendments, rather through Annexure P-1, to the consolidation scheme, as also to the subsequent thereto prepared revenue records, as, relates to the dimension(s) of the revenue rasta, thus thereby became concurred. Subsequently, a motion there against was carried to the Director, Consolidation of Holdings, Haryana, who through an order, as enclosed in Annexure P-10, again agreed with the verdict as enclosed in Annexure P-1. The said order resulted in the aggrieved preferring CWP No.14137 of 1993, before this Court. On the said writ petition, the hereinafter extracted directions were made upon the Commissioner, Hisar Division, Hisar, thus exercising the powers of Commissioner under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation), Act, 1948 on 9.4.2015 (hereinafter referred to as 'the Act of 1948'): "Consequently, without expressing any opinion on the necessity of providing a 02 karam passage or the rights of the petitioners as co-sharers, the writ petitions are allowed, the impugned orders are set aside and the matter is remitted to the Commissioner, Hisar Division, Hisar, conferred with power under Section 42 of the Consolidation Act, to consider the matter afresh, in accordance with law, after affording an opportunity of hearing to the parties." 4. The making of the directions (Supra), by this Court to the Commissioner, Hisar Division, Hisar, has thus led to the drawings of the impugned Annexure P-12, on 12.1.2017, whereby he appears to validate Annexure P-1, drawn in the year 1961. 5. The making of the directions (Supra), by this Court to the Commissioner, Hisar Division, Hisar, has thus led to the drawings of the impugned Annexure P-12, on 12.1.2017, whereby he appears to validate Annexure P-1, drawn in the year 1961. 5. At the outset, the contents of the affidavit, as asked to be tendered before this Court by the Revenue Officer concerned, thus are of emphatic importance. 6. The learned counsel appearing for the private respondents, does not challenge the contents, as carried in the said affidavit. Imperatively the said affidavit candidly expresses, that the consolidation scheme, became finalized in the year 1960-61, thereafter in commensuration thereof, the updation of records, also occurred, thus thereins the dimension(s) of 1 karam became assigned to the revenue rasta. The legal consequence of the above dimensions, becoming assigned to the revenue rasta hence in the records of rights, is that, the apposite revenue entry as made in the revenue records, rather being unamenable for any change, excepting through a valid decree being passed by the jurisdictionally empowered Civil Court concerned. Only evident occurrences of gross or patent errors in the record of rights inasmuch as, the record of rights not being in commensuration with the finalized consolidation scheme, that for making their corrections, the jurisdiction under Section 42 of the Act of 1948 thus can be exercised. 7. The reason being that there, is a severe limitation in the authorities concerned, thus exercising jurisdiction, on a motion laid before them, under Section 42 of the Act of 1948, in as much as, the said jurisdiction being circumscribed to the makings of corrections of gross, patent, and, rife m1stakes in the records of rights. Such patent or gross errors, would come forth or would arise only when after a close scrutiny of the records of rights, thereby detections of the above errors, rather coming to the fore. In other words, if the apposite revenue entry, as made in the records of rights, is entered or is updated, thus not in commensuration with the finalized consolidation scheme, thereby the updation of records of rights relating to the apposite revenue entry, thus would be patently in derogation of the consolidation scheme, and, thus would become a patent rectifiable error. The said patent error can be chosen to be annulled or modified, through a petition cast under Section 42 of the Act of 1948 being filed. The said patent error can be chosen to be annulled or modified, through a petition cast under Section 42 of the Act of 1948 being filed. However, when the asked for change(s) rather of entries in the record of rights, as become entered, but after termination of the consolidation scheme, but whereby there is an attempt to scuttle the apposite reservations, as, made in the finalized consolidation scheme, and, also whereby attempts are made to score off, the revenue entries, but drawn strictly in terms of the finalized consolidation scheme, there upon obviously such motions are untenable and require dismissal. Therefore, if any aggrieved from an entry in the record of rights, as, becomes prepared strictly in pursuance to the termination of the consolidation proceedings, besides but obviously when such a revenue entry is not patently illegal, rather is claimed to not fully sub-serve, the interest of the stake holders, there upon a motion cast under Section 42 of the Act of 1948, rather is not tenable. The remedy available to such aggrieved, is to either file a civil suit before the learned Civil Court concerned, in case the land, is not shamlat land, or, through a title suit being filed under the relevant provisions of the apposite statutory provisions. The revenue entry was made in terms of the consolidation scheme, and, thus the contested revenue entry was unchangeable through a motion being cast under Section 42 of the Act of 1948, but through a decree of the Civil Court concerned. 8. In the above light, it is to be decided, whether the admitted revenue entry as made in the records of rights, thus relating to the revenue rasta, whereby it initially became assigned a dimension of 1 karam, thus whether the addition of 1 karam thereto, was justifiable through a motion being made under Section 42 of the Act of 1948. The answer to the above is, but to be against the persons who cast a motion before the statutory authorities below. The reason being that, unless evidence surged forth, thus displaying that as a matter of fact in the records of rights, the assignment of 1 karam, to the revenue rasta, rather was not in commensuration with the consolidation scheme, there upon the apposite revenue entry was unchangeable. The reason being that, unless evidence surged forth, thus displaying that as a matter of fact in the records of rights, the assignment of 1 karam, to the revenue rasta, rather was not in commensuration with the consolidation scheme, there upon the apposite revenue entry was unchangeable. Contrarily, on anvil of inter-se inconsistency, thus inter-se the dimensions initially assigned to the revenue rasta, in the consolidation scheme, rather with the records of rights, there upon there would be a patent illegality or a patent error. Resultantly such an illegality or an error, was thus, curable through a motion being cast under Section 42 of the Act of 1948, otherwise not. 9. However, when there is no such inter-se inconsistency inter-se the scheme of the consolidation, and, with the consequent thereto updation of the revenue records, and, yet with the aggrieved from the said revenue records, rather striving to increase the dimension of the revenue rasta from 1 karam to 2 karams. Resultantly, thus the said grievance cannot be re-coursed before the Authority under the Act of 1948, but the remedy for increasing the width or the dimension of the revenue rasta, from 1 karam to 2 karams, is through a title suit being filed, before the learned Civil Court concerned, or through a title suit being filed in terms of the statutory provisions as engrafted in the apposite special legislation. The vice of delay and laches does not get attracted to a void non est revenue entry or to a void non est order. 10. The learned counsel appearing for the private respondents has yet argued that the order drawn in the year 1961, was unchallengable at the belated stage, as it was barred by the principle of gross delay, and, laches. 11. However, the vigor of the above submission becomes unhinged, as any purported delay would not defeat the cause of action, which comes up before this Court, especially when it relates to a revenue entries or relates to a void and nonest entry, or to a jurisdictionally incompetent order of change in revenue entries, thus being made. Significantly, when such changes are ordered, through the impugned orders, orders whereof for reasons (supra), is evidently beyond the jurisdictional competence of the authorities, thus exercising jurisdiction under Section 42 of the Act of 1948. 12. Significantly, when such changes are ordered, through the impugned orders, orders whereof for reasons (supra), is evidently beyond the jurisdictional competence of the authorities, thus exercising jurisdiction under Section 42 of the Act of 1948. 12. In consequence, the writ petition is allowed and the impugned order dated 12.1.2017, Annexure P-12, is quashed and set-aside. Liberty is reserved to the private respondents herein to access the Civil Court concerned, to nullify the contested mutations, as drawn by the Consolidation Officer concerned, in the year 1960-61, whereby the initially assigned dimension of 1 karam, as became assigned to the revenue rasta thus, became increased to 2 karams. 13. However, it is clarified that the revenue rasta carrying a dimension of 1 karam shall be maintained at the site concerned.