DHOLPOSH SHARMA SHASTRI Vs. RICHHPAL SINGH

JUDGEMENT

(1.) The petitioner has filed the present writ petition challenging the order dated 8.3.1988 passed by the Director, Consolidation under Section 42 the East Punjab Holdings (Consolidation and Prevention of Fragmentation)- Act, 1948 (hereinafter reference as the Act) and order, Annexure P5 whereby the Consolidation Officer provided path to respondents No. 1 to 3 in pursuance of the order dated, 8.3.1988.

(2.) Briefly, the facts as stated in the petition, are that the petitioner alongwith of sharers has been in possession since more than 100 years as Dholidars of the land bearing Khewat No. 34, Khata No. 64, Rectangle No. 25, Killa No. 9/2 situated in the revenue estate of village Kharkheri, Tehsil and District Gurgaon. It is not in dispute that, the consolidation proceedings were completed in the village in 1953 and repartition was announced on 5.5.1953 and possessions were changed in July 1 1953. On 30.5.1977, respondent No. 1 filed petition under Section 42 of, the Act, against the petitioner asking that he be provided path from the land of the petitioner sharers. The petition was dismissed by the Director, Consolidation on 3.8.77 Petition was not only dismissed with the remark that the same was filed after 24 years when repartition was announced but also on merits. Again on 21.1.87, respondent No. 1 filed a petition under Section 42 of the Act asking for the same relief but the said petition was dismissed on 27.5.87. The Director, Consolidation was of the opinion that no review was maintainable and as such petition under Section 42 of the Act is not competent. Thereafter, a third application was filed by respondent No. 3 i.e. son of respondent No. 1 under Section 42 of the Act before the Director, Consolidation. In that application it was prayed that at the time of Consolidation of Killa Nos. 24/6/1/15, 25/1/2/10, 11 no path was given to the applicants and the same be, given to them now. On this petition, the Director remanded the case to the Consolidation Officer with the direction that respondent No. 3 be provided path after hearing both the parties and keeping in view the provisions of Section 21(2) of the Act. On remand, the Consolidation Officer found that if respondent No. 3 is provided path of 2 Karams from Killa No. 23/9/2 i.e. the land of the petitioner, he can have easy access to his land and equivalent area of land be given to the petitioner from Killa No. 25/10 so as to compensate him. The petitioner on coming to know of the order dated 22.7.88 wrote a registered letter dated 18.8.88 to the Director protesting about passing of the order dated 22.7.88. On this letter, the Settlement Officer, vide letter dated 20.9.88 informed the petitioner that in case he has any objection, he can file appeal under Section 21(3) of the Act for the settlement of his claim. The petitioner made a detailed representation to the Director, Consolidation of Holdings vide letter dated 16.12.88 wherein he not only gave history of the entire case but also attached revenue record. Petitioner's grievance was that he was kept in dark and he was purposely not made a party, he being an affected party, as the passage is being provided to the respondents No. 1 to 3 from his land, he ought to have been heard before any order was passed adverse to his interest. However, the petitioner was informed by the Director, Consolidation of Holdings vide letter dated 28.12.1988 that no action can be taken on his miscellaneous application and in case the petitioner is aggrieved, he should take suitable action under the law.

(3.) The petition is being contested by respondent Nos. 1 to 3. They have taken certain preliminary objections like that the petitioner has already filed appeal under Section 21(3) of the Act and as such the present writ petition is not competent. The second objection is that the petitioner has suppressed the material facts inasmuch as he has not disclosed in the writ petition that he had filed a civil suit challenging the order providing path to the respondents. In the said suit, the petitioner had filed an application for grant of ad-interim injunction which initially was granted to him but was vacated later on and it was observed in the order dated 25.2.1989 passed by the Sub Judge 2nd Class, Gurgaon that the petitioner shall not be dispossessed except in accordance with law.