CWP No.5341 of 1983 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.5341 of 1983 Date of Decision: 21.8.2008 Kahla Singh .....Petitioner Vs. Additional Director, Consolidation of Holdings, Punjab and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.Arun Palli,Sr.Advocate with Mr.Jai Bhagwan, Advocate for the petitioner. Mr.R.K. Battas, Mr.Hem Raj Bhardwaj, Advocate and Mr.Amarjit Markan, Advocate for respondents no.3 to 11. .... RAJIVE BHALLA, J (Oral) The petitioner, prays for issuance of a writ in the nature of Certiorari for quashing of the order dated 21.3.1983 passed by the Additional Director, Consolidation of Holdings, Punjab, whereby land in petitioner's possession has been allotted to the original respondents no.3 to 11, now represented by their legal representatives. Consolidation proceedings were finalised in the year 1957-58. On 30.6.1982, respondents no.3 to 11, filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as ‘the Act’) against the Jumla Mushtarka Malkan land and Siri Guru Teg Bahadur College, respondent no.12, praying CWP No.5341 of 1983 2 that as there was a short fall of 2 std.kanals, in the land allotted to them during consolidation,the shortfall be made good from the bachat land. Vide order dated 28.10.1982, Killa No.48/6, 15, 49/10, 76/8, 4 were allotted to respondents no.3 to 11. As the petitioner was in possession of this land as a proprietor/co-sharer in the Jumla Mushtarka Malkan, he filed a petition on 16.2.1983, praying that the above order be recalled. Vide order dated 18.3.1983, the Additional Director, Consolidation recalled the order dated 28.10.1982 and directed that the original application filed by respondents no.3 to 11 be placed for rehearing. After rehearing, the Additional Director, Consolidation, directed vide order dated 21.3.1983 that the shortfall of land in respondents no.3 to 11’s entitlement be made good from Khasra No.48//6/ 5-13, 15,/8-0, 49//10/9-13, 76//8/7-0, and Khasra No. 4/(3-0) measuring 33 kanals 6 marlas. For the purpose of the present petition, however, we are only concerned with Khasra Nos.48/6 and 15, which have been allotted to respondents no.3 to 11 from the land in the petitioner's possession. Counsel for the petitioner submits that shortfall in the land allotted to respondents no.3 to 11 is admitted. It is, however, argued that in case any land was to be retrieved from the Jumla Mushtarka Malkan, the Additional Director, Consolidation should have considered the entire land, referred to as Jumla Mushtarka Malkan and not the petitioner's land alone. The impugned order does not assign any reason for retrieving land from the petitioner and not from other co-sharers. It is submitted that though the Additional Director, Consolidation, has held that the petitioner is a co- sharer, but in the latter part of his order, he has erroneously held that the petitioner has no right over the disputed land. This apparent contradiction CWP No.5341 of 1983 3 in the impugned order, as also the fact that the entire Jumla Mushtarka Malkan land was not taken into account for making good the deficiency in the land allotted to respondents no.3 to 11, merits acceptance of the writ petition. Counsel for respondents no.3 to 11, however, submits that as per the scheme of consolidation, shortfall, if any, in the entitlement of a landowner is to be made good from the land described as Jumla Mushtarka Malkan. The petitioner does not deny that there was a shortfall in the land allotted to respondents no.3 to 11. The mere fact that the petitioner asserts his right to remain in possession as a co-sharer, will not take precedence over the rights of respondents no.3 to 11, to make good the shortfall in their land. It is further submitted that as the land occupied by the petitioner was most suited to the respondents' claim, the Additional Director, Consolidation allotted this land to respondents no.3 to 11. It is further asserted that as the impugned order does not suffer from any illegality or error of fact, the writ petition be dismissed. As facts necessary for adjudication of the instant writ petition have been narrated herein above, they do not require repetition. The petitioner accepts that there was a shortfall in the land allotted to respondents no.3 to 11, after repartition. The only question, that requires consideration is, whether the Additional Director, Consolidation, could retrieve the land admittedly, in the petitioner’s possession. The petitioner’s status as a co-sharer and his possession over the land in dispute is admitted by respondents no.3 to 11, in para 3 of their written reply, filed to the writ petition. The Additional Director, Consolidation, held that the petitioner was a co-sharer but thereafter proceeded to hold, in contradiction CWP No.5341 of 1983 4 to this finding that the petitioner did not have any right in the land. As the petitioner is concededly a co-sharer in the Jumla Mushtarka land, the finding returned by the Additional Director, Consolidation that the petitioner had no right to this land is incomprehensible. Even otherwise, before proceeding to identify the land to be allotted to respondents no.3 to 11, the Additional Director, Consolidation was required to consider the entire land that comprised the Jumla Mushtarka Malkan and only thereafter ascertain the most suitable piece of land to be allotted to respondents no.3 to 11. The petitioner and other co-sharers in possession of Jumla Mushtarka Malkan land are similarly situate and would have to be treated at par for allotment of land to respondents no.3 to 11. The impugned order does not set out any reason that led the Additional Director, Consolidation, to hold that land in occupation of the petitioner was the land most suited for allotment to respondents no.3 to 11 and, therefore, deserves to be set aside. The writ petition is allowed, the order dated 21.3.1983 is set aside and the matter is remitted to the Additional Director, Consolidation or his successor for adjudication afresh, of the claims of the petitioner and respondents no.3 to 11, in accordance with law. Parties are directed to appear before the Additional Director, Consolidation or his successor on 26.9.2008. The Additional Director, Consolidation or his successor shall decide the petition after hearing all parties concerned, within a period of three months from the date of receipt of a certified copy of this order. No costs. 21.8.2008 (RAJIVE BHALLA) GS JUDGE