CWP No.9273 of 1988 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.9273 of 1988 Date of decision:29.03.2011 Ishar Singh ..... Petitioner Versus The Additional Director, Consolidation of Holdings, Punjab, Chandigarh at S.A.S.Nagar, Mohali and another ..... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.Ashish Pal Kaushal, Advocate for the petitioner. Mr.Viney Saini, Advocate for Mr.G.S.Nagra, Advocate for respondent no.2. ***** RAJIVE BHALLA, J.(ORAL) The petitioner impugns an order dated 30.05.1988, passed by the Additional Director, Consolidation of Holdings, Punjab. The dispute in the present case, falls within a narrow compass namely: whether the Additional Director, Consolidation has any jurisdiction to delete a path provided during consolidation proceedings on the basis of an alleged agreement particularly when a civil court has already issued an injunction with respect to the path and the agreement pressed into service was never pleaded before the civil court. Counsel for the petitioner submits that consolidation proceedings concluded in the year 1961-62. Gurmukh Singh and Kapoora Singh were allotted path no.894 for their use as also for use by other right-holders of the village. In the year 1985, respondent no.2 encroached upon this path and obstructed the petitioner from using the CWP No.9273 of 1988 -2- path. The petitioner and one Gaila Singh filed a suit for mandatory injunction. Respondent no.2 raised a plea that the path is not in use and he has been cultivating the path for the last 23 years. Vide judgment and decree dated 04.10.1987, the Additional Senior Sub Judge, Bathinda, decreed the suit and directed respondent no.2 to remove the encroachments from the disputed path. Respondent no.2 filed an appeal which was dismissed. A Regular Second Appeal No.3406 of 1987 was dismissed on 16.12.1987. Respondent no.2 thereafter filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act) before the Additional Director Consolidation of Holdings, Punjab on the ground that Gurmukh Singh and Kapoora Singh had entered into a compromise and accepted Rs.500/- each thereby waiving their right to the said path. The Additional Director Consolidation accepted the petition and altered the path. Counsel for the petitioner submits that upon conclusion of consolidation proceedings, authorities under the Act including the Additional Director Consolidation, are functus officio. The only power available to the Additional Director Consolidation is to correct an error or undo palpable injustice by resort to power under Section 42 of the Act. The petition filed by respondent no.2 after a gap of more than 25 years was barred by inordinate delay and laches and should therefore have been rejected summarily. It is further submitted that the CWP No.9273 of 1988 -3- Additional Director Consolidation has ignored the civil court decree and the fact that respondent no.2 did not place reliance upon any compromise with Gurmukh Singh and Kapoora Singh and in fact asserted adverse possession before the civil court. It is further submitted that as the civil court has accepted the existence of the path and the fact that respondent no.2 has encroached upon the path, the Additional Director Consolidation had no jurisdiction to allow the petition. Counsel for the respondent no.2 on the other hand submits that as this path was never in use, the Additional Director Consolidation rightly withdrew this path from the petitioner's land and allotted it to respondent no.2. It is further submitted that as the petitioner was never using this path, no prejudice has been caused. With respect to the civil litigation, it is submitted that as a right to provide a path vests with authorities under the Act, the civil court judgment does not bind the Additional Director Consolidation exercising powers under Section 42 of the Act. I have heard counsel for the parties and perused the impugned order. Admittedly, consolidation proceedings concluded in the revenue estate in the year 1961-62. The path in dispute was allotted to Gurmukh Singh and Kapoora Singh for their use and for use of other inhabitants of the village. The petitioner and one Gaila Singh filed a suit for mandatory injunction to direct respondent no.2 to remove encroachment from this path. Respondent no.2 filed a written statement CWP No.9273 of 1988 -4- challenging their locus standi and on merits, denied the existence of any path and alleged that he is in possession for the last more than 23 years. The Additional Senior Sub Judge, Bathinda vide judgment and decree dated 10.04.1987 decreed the suit against respondent no.2 by upholding the existence of the path, by holding that the path was used by the petitioner and by holding that respondent no.2 had no right to encroach upon this path. The civil court also negatived the plea raised by respondent no.2 that he has been in possession for the last 23 years. The judgment and decree passed by the civil court was affirmed both in first and second appeals. It would be necessary to point out that before the civil court respondent no.2 did not place reliance upon any compromise much less a written compromise with Gurmukh Singh and Kapoora Singh. Respondent no.2 thereafter filed a petition under Section 42 of the Act praying that the path be modified as Gurmukh Singh and Kapoora Singh had entered into a written agreement after receiving Rs.500/- each. The Additional Director Consolidation accepted the prayer in an arbitrary and erroneous manner, wihout considering findings recorded by the civil court and the inordinate delay of more than 25 years in filing the petition under Section 42 of the Act. A perusal of the impugned order reveals that no reference has been made to the civil court decree or findings recorded therein. Even otherwise, upon conclusion of consolidation proceedings, authorities under the Act including the Director Consolidation are functus officio except to the extent of correcting errors in the scheme of consolidation CWP No.9273 of 1988 -5- or its implementation. Consolidation authorities have no right to vary a scheme to provide path or deprive a party of a path on the basis of a compromise, much less a compromise that has not been proved or pleaded in the inter-party litigation before a civil court. The fact that a path may or may not be used, does not entitle the Director Consolidation to change the alignment of a path, retrieve a path from a party or order that this path would be allocated to another party. In view of this error of jurisdiction committed by the Additional Director, Consolidation of Holdings, Punjab, the writ petition is allowed and the impugned order is set aside. No order as to costs. 29.03.2011 [ RAJIVE BHALLA ] shamsher JUDGE