IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 11728 of 2007 (O&M) Date of decision : 1.9.2009 Smt. Jaidevi and Others ….. Petitioners Versus Director, Department of Consolidation, Haryana and Others ….. Respondents Present: Mr. S.P. Chahar, Advocate for the petitioners. Mr. Sudhir Makkar, Sr. DAG, Haryana for respondents No.1 and 2. Mr. Vijay Singh Kajla, Advocate for respondent No.3. **** S.S. SARON, J. Heard counsel for the parties. The grievance of the petitioners in the present petition under Articles 226/227 of the Constitution of India is that although their names have been mentioned from serial No.97 to 102 in the list dated 16.7.1996 (Annexure P1) for consideration for allotment of 160 sq. yards plots, from amongst the members of the Scheduled Castes, Backward Classes and other landless persons of village Bandhwari, Tehsil Sohna, District Gurgaon, but they have been excluded by the Sarpanch of the respondent No.3-Gram Panchayat under the garb of getting demarcation of the Shamlat land done. Therefore, it is prayed that the orders dated 25.8.2005 (Annexure P4) passed by the Director Consolidation, Haryana (respondent No.1) and 18.6.2007 (Annexure P5) passed by the Consolidation Officer, Gurgaon (respondent No.2) be quashed and a CWP No. 11728 of 2007 (O&M) [2] direction be issued to the respondents to allot residential plots being demarcated from the Shamlat land of the Gram Panchayat (respondent No.3) as per resolution and list dated 16.7.1996 (Annexure P1), which is in force till date. The Gram Panchayat village Bandhwari, Tehsil Sohna, District Gurgaon (respondent No.3) on 16.7.1996 (Annexure P1) had passed a resolution for allotment of residential plots of 160 sq. yards from the Shamlat land of the Gram Panchayat (respondent No.3). The names of the petitioners figured at serial No.97 to 102 in the said list. At serial No.97 there is the name of Sher Singh who has since died and petitioner No.1 Smt. Jai Devi is the widow of Sher Singh and she claims allotment of a plot in his place. The resolution dated 16.7.1996 (Annexure P1) along with the list was sent to the Panchayat Samiti for approval and was also sent to the Block Development and Panchayat Officer, Gurgaon for necessary action. The Consolidation Scheme in the village was sanctioned on 28.4.1994 and in compliance with the resolution after demarcation of the Shamlat land, an area of 5 acres in khasra Nos.748 and 749 was reserved for allotment to the landless persons. Sh. Jaipal, Sarpanch of respondent No.3- Gram Panchayat, Bandhwari on 27.8.2004 it is alleged with a view to defeat the claims of the petitioners filed a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (“Act” – for short) alleging that the reserved area to be allotted to the landless persons for residential purposes i.e. the land comprised in Khasra Nos.748-749 was a mountain and therefore, not fit for residential purposes. It was prayed that a new area be earmarked by changing the site of land for allotment to the landless person. Along with the application for changing site a new list (Annexure P2) of 241 persons for allotment of plots was attached. It is submitted that the names CWP No. 11728 of 2007 (O&M) [3] of the petitioners were not included in the new list (Annexure P2) that was furnished by Sh. Jaipal Sarpanch. In any case, the Director Consolidation (respondent No.1) vide order dated 25.8.2005 (Annexure P4) allowed the application of Sh. Jaipal Sarpanch and changed the area for allotment of plots from khasra Nos.748-749 to khasra Nos.734-735. It was also ordered that as the old list dated 16.7.1996 (Annexure P1) was not available in the record so the allotment be done according to the new list (Annexure P2) and the case was remanded to the Consolidation Officer, Gurgaon (respondent No.2). The Consolidation Officer, Gurgaon (respondent No.2) after hearing the case; out of 241 persons mentioned in the list, ordered allotment of plots to 217 person vide order dated 18.6.2007 (Annexure P5). It is submitted by the learned counsel for the petitioners that in this manner the names of the petitioner were surreptitiously excluded from the consideration process. No written statement has been filed by respondent No.3-Gram Panchayat. However, the reply filed on behalf of respondents No.1 and 2 has been adopted by it. In the reply filed by respondent No.2 on behalf of respondents No.1 and 2, it is submitted that the consolidation proceedings took place in village Bandhwari during the year 1994-2001. It was confirmed in the year 1994. A provision was made in the Consolidation Scheme that the landless agricultural labourers would be given five marlas plot each. For the said purpose five acres of land in Khasra Nos.748 and 749 was kept reserved. The Consolidation Officer, Gurgaon pursuant to the remand decided the case vide order dated 18.6.2007 (Annexure P5) and allotted plots to 217 eligible landless inhabitants out of the list of 241 persons supplied by the Sarpanch of respondent No.3- CWP No. 11728 of 2007 (O&M) [4] Gram Panchayat as on physical verification at the spot by the consolidation staff, 24 persons were not found eligible for the allotment of residential plots. It is submitted that as per the provision of Section 18-C the Act, non-proprietors who are not sub-servient to agriculture are not eligible for allotment of plots. After giving my thoughtful consideration to the matter, it may be noticed that the names of the petitioners figured in the resolution dated 16.7.1996 (Annexure P1) from serial No.97 to 102 for allotment of residential plots measuring 160 sq. yards each. However, the Sarpanch Sh. Jaipal filed an application (Annexure P2) under Section 42 of the Act inter alia stating that the area reserved in the scheme of allotment of plots is a mountainous area in which plots cannot be carved out, so, a new area be reserved. Along with the said application, the Sarpanch appended a list of 241 persons which does not include the names of the petitioners. It is not shown as to why the list (Annexure P1) has been changed. The specific averments in this regard made by the petitioners are not controverted in the reply of respondents No.1 and 2. Besides, respondent No.3 has not filed any reply. Therefore, the stand taken by the petitioners that their names have been excluded with a view to defeat their claims is deemed to have been admitted and is accepted by the respondents. Excluding the names of the petitioners in the subsequent list (Annexure P2) filed along with the application for providing a different area from the other area that was already reserved has gravely and severely prejudiced the rights of the petitioners inasmuch as they have not been informed as to why and how their names have been excluded and even in the petition, their stand has not been rebutted. Respondent No.3 cannot act arbitrarily and with bias to exclude the names of the petitioners. The petitioners’ contentions that because they did not support the candidature of the Sarpanch Sh. Jaipal, that is why their names have CWP No. 11728 of 2007 (O&M) [5] been excluded from the new list (Annexure P2), cannot be said to be without basis. The consideration for allotment of plots is to be done by the Panchayat authorities. However, in the absence of the names of the petitioners, they could not have been considered. In the facts and circumstances, it would be just and expedient that a direction is given to Gram Panchayat, Bandhwari (respondent No.3) to forward the names of the petitioners for consideration for allotment of allotment of plots to the competent authority. Accordingly, the writ petition is disposed of with the direction that the names of the petitioners shall be forwarded by Gram Panchayat, Bandhwari (respondent No.3) to the competent authority for consideration for allotment of plots measuring 160 sq. yards in terms of the original resolution dated 16.7.1996 (Annexure P1). (S.S. SARON) JUDGE September 1, 2009 amit