Delhi High Court
Shri Narain Singh vs The Consolidation Officer And ... on 14 December, 2005
Author: M Katju
Bench: M Katju, M B Lokur
JUDGMENT
Markandeya Katju, C.J.
1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 9.12.2004 by which he dismissed the writ petition.
2. Heard counsel for the parties and perused the record.
3. The writ petition was filed for quashing the order dated 25.8.2000 passed by the Collector in an appeal filed by respondents No. 2 to 4 under Section 21 (4) of the East Punjab Holding (Consolidation and Prevention of Fragmentation) Act, 1948. The petitioner's holding was in Khasra No. 522 of Village Bamnoli, Tehsil Mehrauli, New Delhi. Consolidation proceedings were initiated and the petitioner was allotted land along with co-owners in a place different from the place where the original land of the petitioner was located. The petitioner filed objections under Section 21 (2) of the Act alleging that there was a tubewell in existence in his original holding and hence he should be allotted the land in the original holding.
4. Under the consolidation scheme it was stated:-
"Efforts shall be made to give the same plot to those Bhumidars in whose plots chahat and tubewell are coming inside the firn
5. The Consolidation officer after calling a report from the Halqa Patwari observed that there was only a boring in Plot No. 522 which could not be termed as a tubewell since it was not equipped with electric connection, electric motor and generator room. Petitioner filed an appeal which was allowed by the Settlement Officer. However, the Collector thereafter allowed the appeal of respondents No. 2 to 4.
6. The Collector noted that there was no permanent structure like a room etc. for installation of electric meter and there was no electric connection which a tubewell would normally require. He observed that a mere ground boring was not enough to make it a tubewell.
7. The learned Single Judge no doubt agreed that under the scheme not only a tubewell but also a Chahat was envisaged. However, he was of the view that the said provision in the scheme was not a mandatory requirement but all that was stated therein was that an effort should be made to give the original plot to the landholder. The learned Single Judge has noted that respondents No. 2 to 4 have incurred expenses in constructing walls on the plot in question.
8. In our opinion, the judgment of the learned Single Judge cannot be sustained.
9. In our opinion, the Consolidation Officer and other consolidation authorities have to follow the consolidation scheme as well as the rules for allotment. There is no dispute that the petitioner had a boring in his Khasra No. 522. The petitioner has alleged in the writ petition that he has spent a considerable amount but not less than Rs.50,000/- in getting the said boring done. It is not a simple boring but has been done by puce
Cemented Pharmas (Frames) of 4-1/2 diameter and equipped with iron stairs and operated with diesel engine. Thus, it would amount to a Kayami for the purpose of allotment of plot to the petitioner which cannot be disturbed.
10. In our opinion, there is merit in the submissions of learned counsel for the appellant Dr. Abhishek Manu Singhvi. In fact even the learned Single Judge has observed that the appellant has a Chahat but despite that he has rejected the writ petition by holding that the provision in the scheme which provides that effort shall be made to give the same plot to Bhumidars in whose plots Chahats as tubewells are situated is an only directory.
11. In our opinion, it is true that the said scheme states that effort should be made to give the same plot to Bhumidars who have Chahat or tubewell at their plots, but this does not mean that it is in the absolute discretion of the Consolidation Officer to give the same plot or not to give it at his whims and fancies. The use of the expression 'effort shall be made to give the same plot' means that it is only in an exceptional case that the same plot should not be given. If we take a different meaning, then the aforesaid words will become redundant and meaningless.
12. In our opinion, when the expression used is 'effort should be made to give the same plot', then ordinarily the same plot must be given and if it is not given, then there should be good and cogent reasons for not giving it. In the present case, no good and cogent reasons have been given by the Collector for not giving the same plot to the petitioner/appellant.
13. Apart from the boring amounting to a Chahat, we are also of the opinion that it is not necessary that a tubewell must invariably be operated by electricity. It can also be operated by a diesel engine. There is no dispute that the petitioner had a diesel engine on the plot in question. Hence, he should have been allotted the same plot.
14. It may be mentioned that Chahat means a tubewell operated by a bullock, whereas the word 'tubewell' is not defined in the East Punjab Holding (Consolidation and Prevention of Fragmentation) Act, 1948 but is defined in the Haryana Canal and Drainage Act, 1974. Section 2(13) of that Act states that a tubewell means any device for lifting water from below the surface of the ground by mechanical means operated otherwise than by human or animal power Thus it is not necessary that the tubewell can only be operated by electricity. It can be operated by any mechanical means other than human or animal power. Hence, it can be operated even by diesel engine and not necessarily by electricity. Also, it is not necessary that there should be some puce room in which the diesel engine or electric connection must be situated.
15. In view of the above, this writ appeal is allowed and impugned judgment of the learned Single Judge as well as of the Collector are set aside and the order of the settlement officer is restored.
