CWP No.2619 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.2619 of 2010 Date of decision:19.08.2011 Raghbir Singh and others ..... Petitioners Versus State of Haryana and others ..... Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.Sanjiv Sharma, Senior Advocate with Ms.Sunita Chauhan, Advocate for the petitioners. Ms.Shruti Jain, AAG, Haryana for the respondents. ***** RAJIVE BHALLA, J. (ORAL) The petitioners pray for issuance of a writ in the nature of certiorari for quashing show cause notices, dated 29.06.2009, Annexure P-11 to P-19, and the order dated 19.12.2009, Annexure P-22, passed by the District Town Planner, Ambala. Counsel for the petitioners submits that the land in dispute was admittedly reserved as extended abadi and allotted to the petitioners or their predecessors in interest as “baras”, pursuant to a scheme of consolidation, prepared on 31.07.1956. Over the last four/five decades, the petitioners have constructed small houses and shops with electricity connections, without any objection from an authority whatsoever. As extended abadi is a part of “abadi deh”, the District Town Planner, Ambala, has no jurisdiction, under the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated CWP No.2619 of 2010 -2- Development Act, 1963, (hereinafter referred to as the 'Act'), to call upon the petitioners to get their constructions regularised. It is further submitted that as construction, was even otherwise raised before the Act became applicable on 31.12.1990, the impugned show cause notices and order are clearly without jurisdiction. It is further submitted that as Section 22 of the Act, excludes abadi deh from operation of the Act and extended abadi is deemed to be a part of abadi deh, as held in State of Haryana V/s Pritam Singh, 2002(1) RCR (Civil) 622, the impugned show cause notices and order are illegal and void. It is further pointed out that as in the impugned order, the District Town Planner, has admitted that the land is part of extended abadi, he had no jurisdiction to issue notices or pass the impugned order by holding that as the Act has become applicable on 31.12.1990, the construction has to be regularised. Counsel for the State of Haryana admits on the basis of affidavit filed by Mr.Jagdish Chand Sharma, Tehsildar, Ambala, dated 04.08.2011, that land measuring 143 kanal 10 marla was reserved for extension of Abadi (Taushi Abadi) during the Scheme of Consolidation. It is further submitted that it is correct that the land in dispute was allotted to the petitioners or their predecessor(s) in interest, as 'baras', at the time of consolidation, in the year 1956-57. It is further asserted that as the petitiones have constructed houses and shops, after the Act was extended to their land, the District Town Planner, Ambala, has rightly initiated proceedings under the Act. It is also argued that if CWP No.2619 of 2010 -3- the land is abadi deh, a direction may be issued to the Gram Panchayat, through the DDPO/BDPO to ensure that the land is restored to its original status namely a 'bara'. I have heard counsel for the parties, perused the paper book, the show cause notices, the impugned order and the statutory provisions of the Act. The land in dispute was admittedly reserved, during consolidation as extended abadi. The land was admittedly allotted to the petitioners or their predecessors as “gair mumkin baras”. As there was some dispute about the nature of land, the Naib Tehsildar was directed to produce the original record. The Khatauni Ishtemal, the Naqsha Haq-darwar, the Register Karwai, the Khatauni Pamaish and the Misal Haquiat, documents prepared during consolidation, have been produced in court today, for perusal. A perusal of these documents clearly establishes that the land in dispute was reserved as extended abadi for being allotted as 'baras'. The District Town Planner, Ambala, appears to have been swayed by the allotment of khasra numbers to these 'baras' while drawing an inference that this land is not “abadi deh. At this stage, it would be necessary to make a brief reference to the nature of consolidation proceedings. Consolidation of land holdings, involves consolidation of “agricultural land” but excludes land that falls within abadi deh. During consolidation, new khasra numbers are allotted to the consolidated land. A consolidation scheme, prepared pursuant to a statutory notification, generally provides for CWP No.2619 of 2010 -4- reservation of land for extension of abadi. The extended abadi falls between the phirni and the Abadi Deh (demarcated by the Lal Lakir) and is referred to as 'taushi abadi'. The extended abadi is divided into small plots known as 'baras' which are to be assigned bara numbers. However, in some consolidation documents, these baras are allotted khasra numbers, wrongly. It would be necessary to emphasis that khasra numbers are allotted to fields within a “mushtatil” i.e. a revenue rectangle. During consolidating proceedings, agricultural land is divided into rectangles and each rectangle is sub-divided into fields which are allotted separate khasra numbers i.e. field numbers. The land within extended abadi is not divided into separate “mushtatils” (rectangles) and, therefore, cannot be allotted khasra numbers (field numbers). Baras carved out in the extended abadi, are, therefore, to be allotted bara numbers and not khasra numbers (field numbers). Abadi Deh on the other hand is allotted one khewat and one khasra number. The mere allotment of a khasra number, to baras, situated within the extended abadi, would not exclude this land from “extended abadi” or “abadi deh”. A dispute with respect to the nature of extended abadi, came up for consideration, before a Division Bench of this Court in State of Haryana V/s Pritam Singh (supra). The State of Haryana, laid challenge to an order passed by the Tribunal, constituted under the Act, holding that demolition of houses within extended abadi is illegal as extended abadi is deemed to be “abadi deh”. After due consideration of CWP No.2619 of 2010 -5- the nature of “extended abadi and “abadi deh”, the learned Division Bench held that “extended abadi” is a part of the “abadi deh” and by virtue of Section 22 of the Act, is excluded from the operation of the Act. A relevant extract from the judgment reads as follows: - “8. We have heard the learned Counsel for the petitioners and find no merit in the contention raised by her. The only question which needs consideration is whether the area comprising in Khasra No.65 falls within the 'Abadi Deh' of village Kakru or not. The Tribunal had found that the consolidation in the village had taken place in 1954 and a Scheme had been prepared. This Scheme provided for a circular road on two sides of the 'Abadi Deh' and an area measuring 100-10 Standard Kanals had been shown within the circular road and outside the 'Lal Lakeer'. As per this Scheme, the additional area had been left for the purpose of residential houses and entry to the Abadi. Khasra No.65 is admittedly a part of this area of 100-10 Standard Kanals. Thus, there is no dispute that the disputed site falls within the extended 'Abadi Deh' of the village Kakru as per the Scheme. The learned Counsel for the petitioners wants to place a very restrictive interpretation of the term 'Abadi Deh'. According to her, only the area which had been shown as 'Abadi Deh' in the Scheme would be covered by the exemption under Section 22 of the Act. However, the area left for extension of the village Abadi could not be considered to be 'Abadi Deh'. We are unable to accept this contention. It was rightly observed by the Tribunal that the area reserved for extension of 'Abadi' would be covered by the term 'Abadi Deh'. The Tribunal had recorded the following findings: - “A nomenclature of 'Abadi Deh' itself signifies that such a place is meant to be made use of by the villagers for raising a building, house or a bara. Examined in the context of rise in demand of such an area, that a provision is made in the Scheme at the time of consolidation of holding of the village that some more area be included in the existing 'Abadi Deh' so that the inhabitants of the village can build their houses, baras etc. Precisely for this reason in the scheme of the village, an area measuring 100-10 Standard CWP No.2619 of 2010 -6- Kanals was left for extension of village Abadi. This area as per map (Annexure P-5) is marked on two sides i.e. East and West by means of red lines whereas the other two sides have been depicted making reference to a road on the North and railway line on its South. Thus the whole area which now comprise 'Abadi Deh' is situate within bounds of red lines, road and the railway line as per map Annexure P-5. We thus find no substance in the plea of respondents that extended limit of the Abadi would not come within the ambit of 'Abadi Deh' as per Section 22 of the Act. 9. We are in agreement with the aforesaid findings of the Tribunal. The expression “Abadi Deh' has not been defined in the Punjab Village Common Lands (Regulation) Act, 1961. It has to be given the meaning as commonly understood. The Tribunal, in our considered view, was perfectly justified in holding that the extended limit of 'Abadi' would also come within the ambit of 'Abadi Deh' as per Section 22 of the Act. 10. We, therefore, find no merit in this writ petition. It is , accordingly, dismissed in limine.” It is, therefore, no longer res-integra that land falling within “extended abadi” is deemed to be “Abadi Deh”. Admittedly, the consolidation scheme, framed in the present case, provides for reservation of land for extension of abadi. The land in dispute is situated within the extended abadi and was divided into baras which were allotted to the petitioners or their predecessors. The land in dispute therefore, partakes the nature of “Abadi Deh”. Section 22 of the Act, provides that provisions of the Act shall not apply to “Abadi Deh” and reads as follows: - “22. Exemption: Nothing in this Act shall apply to- (a) The area comprised in the abadi deh of any village; [(aa) the area adjacent to the abadi deh of any village which the Government identifies for village expansion through a notification, published in the Official CWP No.2619 of 2010 -7- Gazette, specifically to this effect subject to the condition that this area shall not exceed sixty percent of the existing village abadi deh;] (b) the erection or re-erection of a place of worship or a tomb or cenotaph or of a wall enclosing a graveyard, place of worship, cenotaph or Samadhi on land which, on the date of publication, of the notification under sub-section (1) of Section 4, is occupied by or for the purpose of such worship, tomb, cenotaph, graveyard or samadhi; (c) excavations (including wells) or other operations made in the ordinary course of agricultural land; and (d) the construction of an unmetaled road intended to give access to land for agricultural purposes or purposes subservient to agriculture.” Section 22(a) of the Act clearly postulates that nothing in this Act shall apply to the “Abadi Deh” of a revenue estate. As the land in dispute falls within “extended abadi” which is deemed to be “Abadi Deh”, the respondents have no jurisdiction, to invoke the provisions of the Act, issue show cause notices to the petitioners, or pass an order directing them to compound their constructions. The writ petition are therefore, allowed, the show cause notices dated 29.06.2009, Annexure P-11 to P-19, and order dated 19.13.2009, Annexure P-22, passed by the District Town Planner, Ambala, are hereby set aside, leaving it to the State of Haryana to issue appropriate directions as may be necessary and in accordance with law. No order as to costs. 19.08.2011 [RAJIVE BHALLA] shamsher JUDGE CWP No.2619 of 2010 -8-