- (1.) The impugned proceeding is an order issued by the Joint Director Consolidation in purported exercise of its power under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948. The admitted case is that the petitioner is the owner of the property in Rectangle No. 52-53 and the consolidation proceedings had been completed long before the impugned order came to be passed. The order was in response to an application filed by one Kapur Singh and other petitioners stating that his kurrah was situate in Rectangle No. 52-53 and that Rectangle No. 125 in the close vicinity had been left for common purposes and the common purpose was a johar for animals to drink water from the said johar. The petitioner had complained that they had all built residential houses in Rectangle No. 52-53 and they had difficulty in going to the shamlat johar but if a pathway is made through the petitioner's land in killa No. 52/16, it would be beneficial.
(2.) Section 42 of the Act reads as follows: Power of State Government to call for proceedings.-The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit: Provided that no order or scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration.
(3.) It does not contemplate creation of any new right but it empowers the Government to examine the legality of any order already passed or a scheme prepared or confirmed or repartition made by any officer under the Act. If the consolidation had been completed, there could be no scope for passing an order under Section 42 unless the order already passed suffered from vice that would require to be corrected. A Division Bench of this Court had held in Rishi Parkash and Ors. v. Director, Consolidation of Holdings, Haryana, Chandigarh and Ors., 2004 2 HRR 78 that an application for providing a passage to the holding could not be issued nearly 40 years after consolidation. The Division Bench had further held that the proper remedy for such a relief would be only in a Civil Court and the State shall not be competent to provide for a passage through an order under Section 42. The impugned order is clearly beyond jurisdiction and it is, accordingly, quashed. The writ petition is allowed to the above extent.;