Ashok Bhan, J. - (1.) Petitioners and respondents No. 2 to 6 are residents of village Khanpur Jattan tehsil Thanesar, Distt. Kurukshetra in the State of Haryana. Their agricultural lands are adjoining to each other. Consolidation of holdings took place in the village sometimes in the year 1950 -51 and repartition proceedings were taken in the village in the year 1951. No path was provided to the lands of respondents No. 2 to 5. Respondents filed an application under Sec. 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act) on 7.1.1980 for providing three Karams vide passage in Khasra No. 490 which belonged to the petitioner. After notices, vide the impugned order Annexure P -3, Additional Director Consolidation of Holdings, Haryana, allowed the application under Sec. 42 of the Act holding saying that no path was left in the scheme during consolidation operations for reaching to the lands of the respondents; that the Department had committed a mistake in not providing a path to the Kurrah of the petitioners which was a basic necessity for carrying on agricultural operations; that delay of 30 years in filing the application was condoned as path was held to be a basic necessity for the agricultural operations and the case was remitted to the Consolidation Officer Karnal with the directions that two Karams wide path on the Western side of field No. 490 may be provided to the petitioners and equivalent area may be given to the respondents on the Eastern side of Field No. 488 owned by the petitioners. A direction was also issued to the Consolidation Officer to visit the spot and carry out the directions issued in he impugned order after affording an opportunity of being heard to all concerned. Petitioners being aggrieved, have filed the present writ petition.
(2.) The petitioners have challenged the impugned order of the Additional Director of Consolidation of Holdings Haryana technically on two points, that is (i) that the Additional Director of Consolidation of Holdings has condoned the delay after a lapse of more than 30 years on extraneous considerations and that there was no plea for condonation of delay in the application; that Rule 18 of the Rules framed under the Act was mandatory in nature and the application should have been filed within a period of six months and thereafter the application could be filed only with a prayer for condonation of delay in filing the application and, (ii) that as per plan Annexure P.2 attached to the writ petition, there already exists a path from Rect. No. 137 and if the path is provided through Rect. No. 147 (Rect. No. 147 is adjoining to Rect. No. 137 and both these rectangles belongs to, Hans Raj) then the respondents could enter their lands directly without disturbing the petitioners. It was prayed that if at all a passage is to be provided to the respondents then the same should be provided through Rect No. 147 instead of providing the same through Rect No. 490 which belongs to the petitioners.
(3.) In the written statement filed, the respondents have given explanation for filing the application under Rule 16 of the rules framed under the Act at a belated stage. The explanation given is that earlier the petitioners never objected to the use of the passage which was already in existence through the lands of the petitioners and, therefore, the necessity of filing an application for the grant of a passage did not arise. Another fact stated is that their father who died four years back was supervising and tilling the land and the petitioners never objected to the use of the passage but for the first time on 15.12.1979 the petitioners objected in taking the truck loaded with the potatoes through the passage which was in existence; that the petitioner allowed the use of the path to the respondents for 30 years but objected only when their candidate the Ex -Sarpanch Shri Krishan was not elected Sarpanch of the village Panchayat and Ishar Singh the cousin brother of the respondents was elected Sarpanch defeating the candidate supported by the petitioners. It was admitted that there was no written prayer for the condonation of delay in filing of the application but explained the same during the course of arguments before the Additional Director Consolidation of Holdings. It was further averred that passage was sanctioned to carry out the agricultural operations in the lands of the respondents and without the passage the land belonging to the respondents would be rendered useless.;