Himachal Pradesh High Court
Mohinder Singh vs State Of H.P. And Others on 6 September, 2019
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CWP No.3809 of 2014
Decided on: 06.09.2019
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Mohinder Singh .....petitioner
Versus
State of H.P. and others ......Respondents
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Coram
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 yes
For the petitioner: Mr. Dheeraj K.Vashishth,
Advocate.
For the respondents: Mr. Anil Jaswal and Ms. Rameeta
r Rahi, Additional Advocate Generals
for respondents No.1 to 3.
Mr. Neeraj Gupta, Senior
Advocate with Ms. Rinki Kashmiri,
Advocate, for respondents No.4 & 5.
Jyotsna Rewal Dua, J (Oral)
Petitioner projects himself to be a victim of consolidation proceedings conducted in 1985. His case is that Khasra Nos. 555, 556 & 557, situate in village Gudara, Sub-Tehsil Rakkar, Tehsil Dehra District Kangra,H.P., were in his possession from the time of his ancestors; during consolidation proceedings held in 1985-86, these numbers have been allotted to respondents No.4 & 5; but in lieu of same nothing has been allotted to him. Therefore, feeling aggrieved against the consolidation proceedings, the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 03:57:06 :::HCHP 2instant writ petition has been preferred by the petitioner with following prayers:-
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"(I) The respondents No.1 to 3 be directed to decide the claim of the petitioner on merits.
(ii) That the consolidation proceedings carried out in the village Gudara, Sub-Tehsil Rakker, Tehsil Dehra, District Kangra (H.P.) may kindly be quashed and set aside as the petitioner is in the physical possession of the land in question."
2. Facts may be noticed hereinafter:
2(i) Consolidation proceedings were initiated in village Gudara, Sub-Tehsil Rakkar, Tehsil Dehra, District Kangra, in the year 1985-86, where land in question is situated. After the completion of the consolidation, the proceedings were de-notified on 17.02.1999. No grievance whatsoever was put-forth by the petitioner during the consolidation proceedings.
2(ii) It appears from the record that in 2007, petitioner moved an application under Section 54 of H.P. Holdings (Consolidation & Prevention of Fragmentation) Act, 1971, to the Director consolidation. The Joint Director consolidation responded vide Annexure P-1 dated 25.04.2007, informing the petitioner that consolidation proceedings on their completion had already been de-notified on 17.02.1999, therefore, the adjudication of his application was not possible. Accordingly, the same was returned to him.
2(iii) Civil Court proceedings:-
2(iii)a) Petitioner thereafter, filed a civil suit No.67/2007 before the
Court of learned Civil Judge (Junior Division), Dehra, District Kangra, praying for declaration that he alongwith defendants therein was owner in possession of the land including the land in question. Consequential relief of ::: Downloaded on - 29/09/2019 03:57:06 :::HCHP 3 permanent prohibitory injunction was also prayed for. Learned Trial Court while dismissing civil suit returned following factual finding in respect of the .
possession having changed hands as a result of consolidation proceedings:-
"Thus, it cannot be accepted that only plaintiffs had been put into possession of the land allotted to them at the time of consolidation, but the defendants were not put into possession over the land which was allotted to them at the time of consolidation. Moreover, no cowshed or cattle yard is recorded over Khasra No.555 (old 613) and Khasra No.557 (old 615). The nature of Khasra No.555 is recorded as Barani Abal while Khasra No.557 is recorded as Banjar Kadim. Thus, it cannot be accepted that Khasra Nos.555 (old 613) and 557 (old 615) were roun, cattle yard etc. of plaintiffs at the time of consolidation. No appeal or revision has been filed by plaintiffs or their predecessors at the time of consolidation against the allotment. Thus, it appears that the plaintiffs were having no objection against the allotment made at the time of consolidation. Thus, it is clear from the perusal of documents as well as evidence on the record that after the consolidation the lands which were earlier joint between the plaintiffs and defendants was made separate and the parties are coming over in separate possession as per allotment made at the time of consolidation."
2(iii)b) It was also held by learned Trial Court that Section 57 of the H.P. Consolidation of Land Holdings Act bars the jurisdiction of Civil Court as regards the matter arising under the Act. The judgment and decree having gone against him, petitioner preferred first appeal before the learned Additional District Judge, (Fast Track), Kangra. Learned First Appellate Court vide order dated 31.10.2011, allowed the petitioner to withdraw his appeal with liberty to agitate the matter before appropriate Forum.
2(iv) Proceedings before the Consolidation Authorities:
After withdrawing his first appeal, the petitioner preferred an appeal under Section 30(4) of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act 1971, before the Director Consolidation-
cum-Additional Commissioner, Kangra at Dharamshala on 12.09.2012, ::: Downloaded on - 29/09/2019 03:57:06 :::HCHP 4 agitating the impugned consolidation order passed on 18.12.1985. This appeal was dismissed on 8.4.2013 (Annexure P-4) being beyond the .
jurisdiction of the Director Consolidation.
2(v) Petitioner thereafter agitated the matter before the Settlement Officer, Dehra, District Kangra, under Section 30(3), of the Act ibid challenging the order passed by the Consolidation officer on 18.12.1985.
This appeal was also withdrawn by him on 6.8.2013 (Annexure P-5).
3. Having withdrawn the remedies availed by him, the petitioner has now preferred the instant writ petition, praying for quashing the consolidation proceedings of 1985.
4(i). I have heard learned counsel for the parties and gone through the appended record.
4(ii). a) Grievance of the petitioner is against the impugned consolidation order passed on 18.12.1985.
b) Admittedly consolidation proceedings were completed and were de-notified vide notification dated 17.02.1999.
(c) It is not the case of the petitioner that he laid any challenge to the consolidation proceedings in any manner whatsoever from 1985 to 1999.
(d) It is not in dispute that 22 years after the date of passing of consolidation order, the revision petition was preferred by the petitioner under Section 54 of H.P. Land Consolidation Act, 1971, before the Director Consolidation.
::: Downloaded on - 29/09/2019 03:57:06 :::HCHP 5(e) Hon'ble Apex Court in 2010 (13) SCC 555 titled Harbhajan Singh Vs. State of H.P., and others, which was a matter .
originating from H.P. Holdings (Consolidation and Prevention of Fragmentation) Act 1971, held as under:-
"27. Section 35 states that with effect from the date on which a tenure-
holder, in pursuance of the provisions of Section 32, enters into possession of the plots allotted to him, his rights, title and interest in his original holdings shall be extinguished and he shall have the same rights, title and interest subject to modification, if any, specified in the final consolidation scheme in the plots allotted to him thereunder. Section 34 of the Act quoted above states that as soon as the persons entitled to possession of holdings under the Act have entered into possession of holdings respectively allotted to them, the scheme shall be deemed to have come into force.
28.It is, thus clear that it is only when the persons entitled to possession of holdings under the Act have been delivered possession of the holdings that they acquire rights, title and interest in the new holding allotted to them and the consolidation scheme in the area is deemed to have come into force. Till such possession of the allotted land under the consolidation scheme is delivered to the allottees and the consolidation scheme is deemed to come into force, the State Government has the power under Section 16(1) of the Act to cancel the declaration under Section 14(1) of the Act. For this conclusion, we are supported by the decision of the Full Bench of the Punjab High Court in Chahat Khan Bahadur Khan V. State of Punjab cited by Mr Narasimha.
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30. The Full Bench of the High Court held that though Section 36 says that the power and jurisdiction conferred by it on the Settlement Officer (Consolidation) may be used and exercised "at any time", the expression "at any time" will have limitations as spelled out from the context in which it is used. The Full Bench after referring to the various provisions of the 1948 Act held that the:
"Settlement Officer (Consolidation), had no jurisdiction to make the impugned order varying or modifying the scheme of consolidation in the village after the consolidation proceedings were completed and came to an end on the coming into force of the scheme of consolidation of holdings and the taking of possession of the lands allotted to the landholders on or about 16.2.1959." (Emphasis supplied) Consolidation Authorities, Settlement Officer thus rightly refused to entertain the applications of the petitioner under Section 54 & 30 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act ::: Downloaded on - 29/09/2019 03:57:06 :::HCHP 6 1971, as after the completion & closure of the proceedings, they had no jurisdiction to vary or modify the consolidation scheme.
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It is also profitable to refer to 2008 (1) SLC 421, titled Baldev Singh and others Vs. Siri Ram, relevant segments in this regard, produced hereinafter:-
"17. Otherwise also, the consolidation proceedings are conducted under the statute i.e. Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, which is a complete Code, self explicit and comprehensive and provides a complete mechanism to the aggrieved party to agitate the matter before the authorities mentioned thereunder by way of appeal or revision. Section 57 of the Act aforesaid bars the jurisdiction of the civil Court as regards the matter arising under the Act.
18. As is evident from the record, the plaintiff did not agitate the initial wrong entries despite acquiring knowledge in the year 1974. Further after delivering the possession to the defendant during the consolidation proceedings at the time of repartitioning of the land in question in accordance with the published scheme under the Act, he did not assail it before the authorities mentioned thereunder. Thus, the plaintiff was rightly non-suited on the ground of limitation by both the Courts below. Further it is a matter arising out of the consolidation proceedings, therefore, in my opinion the jurisdiction of the civil Court is also barred. Further the earlier entries got eclipsed by the subsequent entries made during the consolidation proceedings, in favour of the defendant which were not assailed under the said Act. Thus the initial entry Ex.PG has lost its importance in view of the subsequent entries made under a statute."
The petitioner had also availed the remedies under the civil law almost 22 years after consolidation proceedings, but after suffering the judgment & decree before the learned Trial Court, he chose to withdraw the first appeal filed before learned First Appellate Court. In fact, petitioner has himself withdrawn the civil litigation as well as applications/appeals filed by him before the Consolidation Authorities & Settlement officer.
Factual claim of petitioner inter-alia challenging consolidation proceedings of 1985 suffers from delay, laches and acquiescence and is not tenable under the statute in exercise of writ jurisdiction. This writ petition is ::: Downloaded on - 29/09/2019 03:57:06 :::HCHP 7 therefore not maintainable & the same is accordingly, dismissed. Pending application(s), if any, also stand disposed of accordingly.
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(Jyotsna Rewal Dua)
Judge
06th September 2019
(rohit)
r to
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