In the High Court of Punjab and Haryana at Chandigarh ...... C.W.P. No.13748 of 2007 ..... Date of decision:8.9.2009 Ram Kishan .....Petitioner v. Director Consolidation, Haryana and another .....Respondents .... Present: Mr. Kul Bhushan Sharma, Advocate for the petitioner. Mr. Sudhir Makkar, Senior Deputy Advocate General, Haryana for respondent No.1. Mr. Vinod Sharma, Advocate for respondent No.2. ..... S.S. Saron, J. Heard learned counsel for the parties. The petitioner has been cultivating land measuring 2 Kanals on the west side of Khasra No.10/1 Min. of Rectangle No.60 in the revenue estate of Mauza Nainsukhpura, Tehsil and District Rewari since the time of consolidation in the village, which was carried out in 1960-61. The said land, which is being cultivated by the petitioner is a strip of land and it adjoins his other lands. In the year 2005, the petitioner came to know that due to an inadvertent mistake in the consolidation proceedings, he had been allocated a strip of 2 Kanals land from Khasra No.10/2 on the eastern side. The land in rectangle No.60//10/1 was assigned in the said consolidation proceedings to Jai Narain, Kanhaiya (respondent No.2) and Jagdish sons of Ghisa son of Maindu. Jagdish, co-sharer of the land in Khasra No.10/1 got C.W.P. No.13748 of 2007 [2] his land demarcated. It is then that the petitioner came to know that he had been given in the records the land comprised in Khasra No.10/2 of rectangle No.60 which is not contiguous to his other land in Khasra Nos.6/1/1 and 18/1/1 as the land in Khasra No.10/1 in the records had been given to Jai Narain, Kanhaiya (respondent No.2) and Jagdish. The said owners had initiated proceedings to dispossess the petitioner from the land on the western side of Khasra No.60//10/1. If they were dispossessed then they would have no access to their land and they would, in any case, be left without any passage to the land in Khasra No.10/2 of rectangle No.60. To the west of of Khasra No.10/1, a canal had been constructed in which 3 Marlas area of land in possession of the petitioner was acquired. However, compensation in respect of the same was taken by Kanhaiya etc. from the State Government. The petitioner filed an application dated 17.5.2005 (Annexure-P.2) under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (`Act' – for short). In the said application it was inter alia submitted by the petitioner that during consolidation proceedings Lala Ram and Ram Rikh sons of Asha were given land measuring 2 Kanals in rectangle No.60, Khasra No.10/2 but at the time of demarcation the possession of western side of land bearing No.10/1 of rectangle No.60 was given. Till date the petitioner had been cultivating the land on the western side of Khasra no.10/1 and they were in possession of the same whereas in the record Khasra No.10/1 of rectangle No.60 had been given in the name of Jai Narain, Kanhaiya (respondent No.2) and Jagdish sons of Ghisa son of Maindu. Jagdish co- sharer some days earlier had got done the demarcation of his land. It is then C.W.P. No.13748 of 2007 [3] that the petitioner came to know that they had been given Khasra No.10/2 of rectangle No.60 which did not adjoin their other land and because of this their land had been bifurcated into two parts because Killa No.10/1 had been given to Jai Narain, Kanhaiya (respondent No.2) and Jagdish. The said owners had initiated proceedings to dispossess them of their possession from the western side of rectangle No.60, Khasra No.10/1. If they were dispossessed then they would have no access without a passage to their other land in Khasra No.10/2. Therefore, by condoning the delay it was prayed that the land in rectangle No.60, Khasra No.,10/2 shown to have been given as per record may be changed to rectangle No.60, Khasra No.10/1 western side as per the demarcation of the petitioner and his possession, besides, also keeping in view the fact that 3 Marlas of land had been utilized in the Canal in the year 1976 for which the compensation had been given to Kanhaiya etc. by the Government. The Director Consolidation, Haryana vide order dated 29.6.2006 (Annexure-P.3) after hearing both the parties and perusing the record held that the land in rectangle No.60 Khasra No.10/2 had been wrongly given to the petitioner and this mistake was inadvertent. Therefore, an offer was made to the petitioner for giving him land on the northern side of rectangle No.60 Khasra No.10/1 and 10/2. It is mentioned that both the parties had consented to this. Accordingly, land on the northern side of Khasra No.10/1 and 10/2 of rectangle No.60 was given to the petitioner. The petitioner thereafter filed an application dated 24.1.2007 (Annexure-P.4) for modification of the order dated 29.6.2006 (Annexure-P.3). It was inter alia stated that the applicant was given land on the north of rectangle No.60, C.W.P. No.13748 of 2007 [4] Khasra Nos.10/1 and 10/2 which was contrary to the facts of the case and the area given was not cultivable. It was stated that the petitioner had earlier filed an application for correction of the revenue record to the effect that his father and uncle, namely, Ram Rikh and Lala were allotted land in rectangle No.60, Khasra no.10/2 during the consolidation proceedings. However, actual possession was given of land in rectangle No.60, Khasra No.10/1 which was adjacent to their land in rectangle No.60, Khasra No.10/2. They had prayed for giving them land adjacent to their other land on the western side of rectangle No.60, Khasra no.10/2. It is submitted that the petitioner was granted 2 Acres of land on the north of Khasra No.10/1 and 10/2 by observing that the parties had consented to it. Mutation No.823 was sanctioned on 19.12.2006 (Annexure-P.7) on the basis of the order dated 29.6.2006 (Annexure-P.3). It was submitted that the order dated 29.6.2006 (Annexure-P.3) was liable to be modified as the petitioner when he gave the consent was under the impression that the area allotted to him would form part of his other adjacent land and it would be cultivable. Later the petitioner realized the mistake after the mutation had been sanctioned and the Patwari and the Girdawar came for demarcation of the land. Thus the consent that was given was under the bona fide impression that the area allotted to him would be cultivable but physically it was not possible to cultivate the narrow strip covering the land in Khasra Nos.10/1 and 10/2. Moreover, the Aksh Shajra showed that the shape of the land had become like an irregular pentagon. It was prayed that the entire area be given to the petitioner parallel to his other land in Khasra No.6/1/1 (1-13) or rectangle No.60 Khasra No.10/1 (3-12) so that it becomes symmetrical and adjoins C.W.P. No.13748 of 2007 [5] the area of other land of the petitioner. It is also submitted that if the proposed amendment was allowed, the respondent would suffer no loss as his house is situated in two Killa numbers i.e. Khasra No.10//1/2 and 11/2 and a small portion of the house falls in Khasra No.10//1/2. The said application dated 24.1.2007 (Annexure-P.4) was dismissed by the Director Consolidation vide order dated 29.5.2007 (Annexure-P.5). It was observed that in terms of order dated 29.6.2006 (Annexure-P.3) the area on the northern side of rectangle No.60 Khasra No.10/1/2 and 10/2 adjoining the field of the petitioner had been given after properly hearing both the parties. The readjustment of the petitioner had been done in the said decision and the respondent had constructed his house on the boundary of rectangle No.60 Khasra No.10/1/2, 10/2 and 11/2 towards the eastern side. Therefore, no area could be given from rectangle No.60 Khasra No.10/1/2. Aggrieved against the said order, the petitioner has filed the present petition under Articles 226/227 of the Constitution of India. Learned counsel for the petitioner has contended that a grave injustice has been done to the petitioner in allotment of the land on the northern side of Khasra No.10/1/2 and 10/2 of rectangle No.60. In fact, the petitioner has been in cultivating possession of the land on the west to Khasra No.10/1/2 since consolidation operations in 1960-61. The said land adjoins the other land of the petitioner length wise and width wise and the possession of the said portion was given to him during consolidation by taking into consideration the feasibility and convenience of cultivation. However, due to an inadvertent mistake the portion towards the eastern side i.e. Khasra no.10/2 was allotted in the record. The allocation towards the C.W.P. No.13748 of 2007 [6] northern side of the narrow strip would be sandwiched between the land of respondent no.2 with no proper convenience and feasibility for cultivation and even a tractor cannot run properly for cultivation. Whereas there would be no obstruction to the house of respondent No.2 if the strip on the western side of Khasra No.10/1 adjoining his land in Khasra No.6/1/1 as shown in the green colour in the site plan (Annexure-P.1) is given to the petitioner. Therefore, the case of the petitioner is for grant of possession of land which is on the western side of Khasra No.10/1 which adjoins his other land. In response, learned counsel for respondent No.2 has submitted that no prejudice has been caused to the petitioner as the land which has now been given on the northern side of rectangle No.60 Khasra No.10/1/2 and 10/2 would be just and reasonable and the petitioner is liable to cultivate the same. Besides, respondent No.2 has constructed his house and by allotting the land now claimed would disturb his possession. I have given my thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the record. In order to appreciate the contentions, the site plan (Annexure-P.1) may be noticed which is as under:- C.W.P. No.13748 of 2007 [7] A perusal of the said site plan shows that the land in Khasra No.18/1/1 and 6/1/1 is owned by the petitioner. His claim is to the land in between Khasra No.6/1/1 and 10/1/2. However, in terms of the impugned order dated 29.6.2006 (Annexure-P.3), the petitioner has been allotted land C.W.P. No.13748 of 2007 [8] as shown in the dots on the northern side of Khasra No.10/1/2 and 10/2. It may be noticed that in the order dated 29.6.2006 (Annexure-P.3), the Director Consolidation has accepted that land in rectangle No.60 Khasra No.10/2 had wrongly been given in the records to the petitioner and this mistake seemed to be an inadvertent one. The land in Khasra No.10/2 is on the eastern side of land in Khasra No.10/1/2. The petitioner could not have been allotted this land as the same is not contiguous to his other land in Khasra No.6/1/1 and 18/1/1. The allotment of land on the west side of Khasra No.10/1/2 is more appropriate as that is contiguous to the other land of the petitioner and the petitioner has been cultivating the same i.e. the land on the west of Khasra No.10/1/2 since consolidation proceedings that were conducted in 1960-61. Therefore, the mistake having been accepted by the consolidation authorities, the same is liable to be rectified by it so as to bring the consolidation scheme and its purpose into effect. The allotment of the land on the dotted lines as shown in the site plan (Annexure-P.1) on the northern side of the Khasra No.10/1/2 and 10/2 would indeed make the land irregular. Besides, it is to be noticed that 3 Marlas of land of the petitioner has also been consumed in the canal that was constructed and compensation for the same has been received by the respondent No.2 etc. Therefore, the land on the west of Khasra No.10/1/2 is liable to be allotted to the petitioner. The only grievance that respondent No.2 may have is that allotment on the west of Khasra No.10/1/2 should not, in any manner, affect the house that has been constructed by him (respondent No.2). It may be noticed that in the application dated 24.1.2007 (Annexure-P.4) filed by the petitioner for modification of the order, it is submitted that the house of C.W.P. No.13748 of 2007 [9] respondent No.2 is situated in two Killa Nos. i.e. Khasra No.10/1/2 and 11/2 and small portion of the house falls in Khasra No.10/1/2. Even the Director Consolidation in his order dated 29.5.2007 (Annexure-P.5) has observed that respondent No.2 has constructed his house on the boundary of rectangle No.60, Khasra No.10/1/2 and 10/2 and 11/2 towards the eastern side. Therefore, the house being on the eastern side and on the boundary of Khasra No.10/2 would not be affected as the land is to be given on the west side of Khasra No.10/1/2. In any case, these aspects would have to be undertaken by the consolidation authorities so as to give clear demarcation. Learned counsel for respondent No.2 has submitted that the petitioner shall ensure that allotment of land to him on west side of Khasra No.10/1/2 would not, in any manner, affect the construction of the house that has been constructed by respondent No.2. Accordingly, the writ petition is allowed and the petitioner shall be allotted land on the west side of Khasra No.10/1/2 contiguous to his land in Khasra No.6/1/1. The necessary corrections in this regard shall be carried out by providing proper measurements by the consolidation authorities. The parties shall appear before the Director Consolidation, Haryana for the said purpose. September 8, 2009. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No