CWP No. 7541 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 7541 of 2004 Date of decision:30.06.2010 Mana and others ...... Petitioners VERSUS The Additional Director Consolidation, Haryana and others ......Respondents CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA. Present: Mr.L.N.Verma, Advocate for the petitioners. Mr.Deepak Girotra, AAG, Haryana for respondents no.1 and 2. Dr.Surya Parkash, Advocate for respondent no.4. ***** RAJIVE BHALLA.J (Oral) The petitioners pray for issuance of a writ in the nature of certiorari for quashing the orders dated 23.05.1997, passed by the Additional Director, Consolidation and the order dated 30.01.2004 (Annexure P-4), passed by the Joint Secretary, Government of Haryana, exercising powers under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act). Faqir Chand, the private respondent filed a petition under Section 42 of the Act, for providing a passage to rectangle/killa no.24/7-8-13-14-15- 16-17-18. The Additional Director, Consolidation, Haryana, vide order dated 23.05.1997, allowed the petition and directed the Consolidation Officer to provide a path after making up deficiency from Faqir Chand's land. The Consolidation Officer, provided a path to Faqir Chand CWP No. 7541 of 2004 -2- through the petitioners' land. Aggrieved by this order, the petitioners filed an appeal. The Settlement Officer, Bhiwani, vide order dated 31.07.2003, directed that the path be provided through the Gram Panchayat's land. The Gram Panchayat filed an appeal before the Joint Secretary, Government of Haryana, Public Works Department, exercising powers under Section 42 of the Act. Vide order dated 30.01.2004, the appeal was accepted, the orders passed by the Consolidation Officer and the Settlement Officer were set aside and the matter was remitted to the Consolidation Officer to comply with the directions, issued in the order dated 23.05.1997, in letter and in spirit, within three months. Counsel for the petitioners submits that a vendee of a part of a larger chunk of land, cannot approach Consolidation Authorities to provide a fresh path as with conclusion of consolidation proceedings they are rendered functus officio and have no jurisdiction to provide a fresh path. As Faqir Chand purchased part of larger chunk of land which was already provided with a passage, during consolidation, he cannot be allotted a fresh passage. Reliance for the above argument is placed on a Division Bench judgment of this court in Banarsi Dass and others Versus Director Consolidation of Holdings, Haryana and others, 1995, PLJ 314 and on a single Bench judgment of this court in Harjit Singh and others Versus State and others, 1997 (1) PLJ 174. Counsel for the private respondent, on the other hand, submits that as a path was not provided to the larger chunk of land, during consolidation, the Director, Consolidation, rightly directed the Consolidation Officer to provide a path. It is further submitted that the CWP No. 7541 of 2004 -3- petitioners have no locus standi to challenge the impugned order, as the Director, Consolidation, has merely directed the Consolidation Officer to provide a passage. I have heard counsel for the parties and appraised the impugned order. Upon conclusion of proceedings, authorities under the Act are rendered functus officio, except to the extent provided in Sections 42 and 43 of the Act. Where a party has not been provided with a passage, during consolidation, he may approach the Director, Consolidation, under Section 42 of the Act, for rectification of this error. Where, however a large chunk of land provided with a path during consolidation, is sold in smaller parcels of land, vendees of such smaller parcels of land cannot approach consolidation authorities, to provide a fresh path. The remedy of such a vendee is to seek a path from his vendor or to seek a declaration of his easementary rights, in accordance with law. Reliance for this enunciation of law is placed upon a Division Bench judgment of this Court in Banarsi Dass and others Versus Director Consolidation of Holdings, Haryana and others (supra) and upon a single Bench judgment of this court in Harjit Singh and others Versus State and others (supra). The petitioners assert that as a path was already provided to the larger chunk of land from which Faqir Chand obtained the land he cannot be provided with a fresh path whereas the respondents urge to the contrary. The question that would determine the validity of the order passed by the Director, Consolidation, is whether a path was provided to the larger chunk of land. A perusal of the order passed by the Director, Consolidation, CWP No. 7541 of 2004 -4- discloses that he has ordered the consolidation officers to provide a path to Faqir Chand without recording any finding whether a path was provided to the larger chunk of land which includes the land measuring 57 kanals and 10 marlas, obtained/purchased by the private respondents. In view of the absence of any finding on this disputed question of fact, it would be necessary to call upon the Director Consolidation to reconsider the matter, in the light of the preceding observations. As a result, the writ petition is allowed, the orders dated 23.05.1997 and 30.01.2004, are set aside and the matter is remitted to the Director Consolidation, Haryana, to reconsider the original application filed by Faqir Chand on 16.09.1993, afresh and in accordance with law. Parties are directed to appear before the Director Consolidation, Haryana, on 11.08.2010. 30.06.2010 [RAJIVE BHALLA] shamsher JUDGE