IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No. 137 of 2010 Date of Decision: 12.12.2011 1. Jagdish Ram, son of Shri Kirpa Ram, 2. Sarwan Kumar, son of Shri Mahant Ram, 3. Birbal, son of Shri Mahant Ram. 4. Jaisi Ram, son of Shri Mahant Ram. 5. Rakesh Kumar son of Shri Dina Nath. 6. Om Prakash son of Shri Tota Ram. 7. Ramesh son of Shri Tota Ram. All residents of village Bhater Chhimbian, P.O. Mohin, Tehsil and District Hamirpur, H.P. … Appellants Versus. 1. State of H.P through Director of Consolidation, H.P. Shimla. 2. Settlement Officer (Consolidation) Hamirpur, H.P. 3. Consolidation Officer (Consolidation), Hamirpur, H.P. 4. Shri Subhash Chand @ Subhar, resident of village Bhater Chhimbian, P.O. Mohin, Tehsil and District Hamirpur, H.P. … Respondents. Letters Patent Appeal under Section 10 of the Letter Patent Act of Delhi High Court as applicable to the Hon’ble High Court of Himachal Pradesh against the judgement dated 27.6.2007 passed by the learned Single Judge in Civil Writ petition No. 704 of 1994 titled Subhash Chand vs. State of Himachal Pradesh and others; with a prayer to allow this appeal throughout with costs and justice be done. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? For the appellants: Ms. Vidushi Sharma, Advocate. For the Respondents No. 1 to 3: Mr. Vivek Thakur, Addl. A.G. For the Respondent No.4: Mr. G.D.Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. 2 Per Deepak Gupta, J.(Oral) 1. Respondent No.4 herein filed CWP No.704 of 1994 in which he claimed the following main reliefs:- (a). Directing respondents 1 to 3 to complete the consolidation proceedings within a time bound period not exceeding six months. (b). Directing the respondents to put the petitioner in possession of his holdings prior to the consolidation proceedings in 1982 till and so long as the new proceedings under the Act are not finalized and further directing the respondents to pay to the petitioner compensation for the deprivation of his property for the period he remained out of possession till the date the possession is restored to him. 2. It appears that the stand of the State initially was that consolidation proceedings stood completed. Thereafter the matter was heard by a learned Single Judge and a Local Commissioner was also appointed. On 10th March, 2004 the learned Single Judge passed the following order:- “When this case was taken up today, learned counsel for the parties stated that report of the SDM, Hamirpur is there on the file. It has been examined, while hearing the case further. A perusal of the said report suggests that no finality is attached to the consolidation proceedings under Section 30 (2) of the H.P.Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. Alongwith the report of the SDM annexures are also attached. Fact remains that after revocation of consolidation proceedings, status quo ante as it existed prior to the initiation of these proceedings stood restored. In these circumstances, SDM Hamirpur is directed to report as to how the land which was admittedly owned by the petitioners and 3 which matter had been set at rest in civil litigation is to be restored and how the area of such land is to be made good? He will also report as to how the persons other than the petitioner claim possession over the land which was initially owned by the petitioner and what is the effect of revocation of the consolidation operations in the village. Let needful be done by 15.4.2004 and report submitted by the SDM. List thereafter. Parties through their learned counsel are directed to appear before the SDM Hamirpur alongwith the certified copy of this order on 20.3.2004.” 3. Pursuant to the directions dated 10th March, 2004 the Sub Divisional Magistrate, Hamirpur submitted a further report and on 14th October, 2004 the learned Single Judge directed that the Secretary (Revenue) and Director (Consolidation) shall remain present in Court on 26th October, 2004. On this date the following order was passed:- “Shri Chandel, learned Advocate General, on instructions from the officers who are present in Court, stated that proceedings under the H.P.Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 were revoked earlier from the stage of formulation of the scheme. He further stated, also on instructions, that because of pendency of this writ petition, respondents could not proceed further to take up the consolidation proceedings to the logical end. According to Mr. Chandel, his clients have now decided to start consolidation proceedings after formulation of the scheme in terms of the order dated 30.4.1994, passed by Director Consolidation. H.P., exercising the powers of the State Government under Section 54 of the Act supra, in case No. 756/1986, titled as Piar Chand and others versus Subar alias Subhash Chand. He further stated that while preparing fresh scheme, his clients shall obtain “no objection” of all the right holders of the village for preparing the 4 scheme in terms of the order dated 30.4.1994 supra. Let no objection from all the right holders of the villagers of village Bhater Chiembian, Tappa Bajuri, Distt. Hamirpur, be placed on record alongwith affidavit of Director Consolidation by or before 31.12.2004. List this case in the first week of January, 2005 alongwith CWP No. 1333 of 2001 for further proceedings. In his affidavit, Director shall also state as to within how much minimum time frame the entire process will be completed by the Department.” 4. Shri M.S.Chandel, learned Advocate General on instructions received from the officers who appeared in the Court, stated that the State had decided to start consolidation proceedings after formulation of the scheme in terms of the order dated 30.4.1994. Thereafter, an affidavit was filed and the writ petition was disposed of on the statement made by Shri G.D.Verma, learned Senior Advocate that the petitioner would be satisfied if sub clause (i) and sub clause (ii) of para 5 of the affidavit are implemented in their entirety. Directions were given to the State to comply with these directions within eight weeks. 5. As noticed above, there were no private respondents in the case. The effect of implementation of sub clause (i) and sub clause (ii) would be that the rights of the present appellants would be affected. 5 6. Aggrieved by the order of the learned Single Judge the present appellants had earlier filed CWP No. 4915 of 2009 which was disposed of by a Division Bench of this Court giving liberty to the present appellants to file an appeal instead of a writ petition. 7. At this stage, we are not going into the question as to whether the case of the appellants is genuine or not because we are not deciding the case on merits but when consolidation operations take place a party who is adversely affected has a right to challenge the order. When the learned Single Judge passed the order there were no private respondents before him and they could not state whether their rights are being affected or not. In the appeal, respondent No.4-petitioner has filed CMP No. 1570 of 2010 and has filed as many as 27 documents with the CMP to show that the present appellant has no right in the land. As stated by us earlier, we are not deciding this question at this stage. This was a question which should have been decided by the learned Single Judge and was not decided 6 probably because there were no private respondents before the learned Single Judge. We, therefore, feel that in the facts and circumstances of the case, it would be appropriate to remand the case to the learned Single Judge who after hearing both the parties shall decide the matter afresh. 8. In view of the above discussion, the judgement of the learned Single Judge is set- aside. The original writ petition filed by respondent No.4 shall stand restored to its original number. CMP No. 1570 of 2010 filed in this LPA shall be treated as a part of the said writ petition and the learned Single Judge may pass appropriate orders on the same. Thereafter the learned Single Judge shall decide the writ petition on merits after hearing all the affected parties including the present appellants. The appeal is disposed of accordingly. No costs. ( Deepak Gupta ) Judge. 12th December, 2011 ( V.K.Ahuja ) ™ Judge.