N.K. Kapoor, J. - (1.) PETITIONERS seek quashing of order Annexure P -3 or for issuance of any appropriate order or direction as the Court may deem fit in the circumstances of the present case.
(2.) PURSUANCE to the notification under Section 14(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1949, a scheme of consolidation was framed on 2.11.1957 which was confirmed and published. No objection was raised in terms of Section 21(1)(2) and (3) of the Consolidation Act. According to the petitioners separate abadi plots were allotted to the petitioners as well as private respondents. Shri Sant Singh respondent No. 3 with a view to get passage to his residential plot earlier filed a suit before the Court of Sub Judge 1 Class, Ambala, for a declaration to the effect that he is owner in possession of Rasta Khas which is shown in the map attached towards the South of the house of Phalel Singh and Kartari and towards the North of the house of Barkha Ram, Sant Singh also prayed for permanent injunction restraining the petitioners from interfering in any manner or causing any obstruction in the Rasta Khas. Interim injunction application filed by the respondent No. 3 was dismissed by the trial Court vide order dated 17.8.1992. Appeal too was dismissed by the District Judge on 2.11.1992. Thereafter, the suit was withdrawn by Santa Singh. It is, thereafter, that respondent No. 3 filed an application under Section 42 of the Act claiming a passage to his plot as the same had not been provided under the Consolidation of Holdings Act. The Director, Consolidation of Holdings vide annexure P3 dated 21.5.1993 accepted the petition of Santa Singh and so allowed him a passage of 3 karams to reach residential plot from Phirni which order is being challenged on the ground that the same is illegal mala fide and based on extraneous considerations. Written statement has been filed by respondent No. 3 Santa Singh. The respondent in his reply admitted that no objection were filed in terms of Section 21(2) and Section 21(3) of the Act. According to the Respondent, the demarcation of plot No. 108 (of the answering respondent) was given as ABCDEF where as demarcation of plot No. 109 (of the writ petitioner) was given as GHBA. According to the respondent, there is common passage for both the plots and as a matter effect both of them have been making use of this common passage so as to reach to their respective residential plots. It is on account of the closure of the plot by the petitioner that the respondent filed the suit seeking a restrain order and since the Court came to the conclusion that there does not exist any passage as per record, withdraw the suit and filed a petition under Section 42 of the Act before the Director for providing him with a passage. This may, approaching by the respondent No. 3 before the civil court in no way debars him from approaching the Director, Consolidation of Holdings under Section 42 of the Act. Referring to the error committed by the authorities while allotting the abadi plot to petitioners as well as the respondent, it has been stated that whereas the respondent's entitlement is for an area measurement 1 Kanal 11 Marias, he had in fact been allotted 1 Kanal 7 marlas whereas the writ petitioners were entitled to an area measuring 9 marlas as had been allotted 14 marlas of land. It is on account of this mistake in the scheme that no title under the scheme has been provided to the answering respondent. To correct such a mistake or omission, no period of limitation is prescribed and the department is duty bound to rectify such a mistake even when nobody has filed an application in this regard. According to the respondent in the present case, Director before -finally deciding the matter sought report from the Assistant Consolidation Officer as well as the Consolidation Officer and it is thereafter on carefully perusing respective contentions raised by the parties and in the light of the factual material placed on record as well as the report of the Assistant Consolidation Officer and Consolidation Officer that the impugned order. Annexure P -3, was passed removing the commission/mistake omitted by the department. The order of the Director, Consolidation of Holdings, Annexure P -3, is legal and just and so the writ petition deserves to be dismissed.
(3.) THE learned counsel for the petitioners at the outset has challenged the maintainability of the petition under Section 42 on the ground of in -ordinate delay. According to the counsel, the consolidation of holding in the village was completed way back in the year 1957 -58, whereas the petition under Section 42 of the Act was filed in the month of January, 1993. There is no explanation for this inordinate delay and in the absence of the same the Director Consolidation infact erred in law in entertaining as well as condoning the delay in filing the petition. Secondly, the respondent earlier filed a suit and since no interim injunction was granted by the Court the same was got dismissed as withdrawn. Concededly, no permission was sought from the Court in terms of Order 23(3) C.P.C. Decision of the Civil Court binds the parties and so the respondent could not re -agitate the matter by filing the petition under Section 42 of the Act. According to the counsel, even on merits the respondent has no case as another passage exists to reach his residential plot. Thus, it is not a case of non -existence of a path to a plot or to a residential accommodation. In any case, pursuance to the allotment of the area in consolidation of holding, the petitioner has raised construction thereupon and so no such area can be given out of the holding of the petitioner for a path to the contesting respondent.;