The judgment establishes the limited jurisdiction of the authority under Section 42 to create passages for exercising easementary rights and addresses the remedy available to petitioners for ensuring access to purchased land.

SURESHWAR THAKUR, J.

1. Respondent No. 3 herein preferred an application cast under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short 'the Act'). In the above application, the respondent herein claimed path measuring 4 karam i.e. 22 feet wide from rectangle No. 10 killa No. 10, belonging to Gram Panchayat, and, whereas the applicant has been given the area of rectangle No. 10 killa No. 2 adjacent land of Gram Panchayat, rectangle No.9, killa No.2 village Saidpur, Mohammadpur, Gurgaon. On the above application, the impugned order, as carried in Annexure P-3, became pronounced. The Gram Panchayat concerned, becomes aggrieved from the drawings of Annexure P-3, and, is led to institute thereagainst the instant writ petition.

2. It is not disputed amongst the parties at contest, that during the course of the consolidation proceedings, rasta or passage was carved by the consolidation authorities for the exercising thereons of easementary rights by all the land holders concerned. One of the land holders one Mange Ram son of Badloo, did not, during the course of his holding a valid title to the land(s) concerned, make any protest to the said carved rastas, by the consolidation authorities, inasmuch as theirs, rather not enabling him, to ably exercise his easementary rights onto his land. However, subsequently the applicant acquired the land concerned, from the above one Mange Ram.

3. Moreover, after the lawful termination of the consolidation proceedings, the bachat or surplus land was allotted in favour of the Gram Panchayat concerned, and, a corresponding entry in respect of the disputed land, was recorded in the jamabandi obviously in favour of the Gram Panchayat concerned.

4. The legal permissibility to move a valid application under Section 42 of the Act (supra), would become sparked on two counts; (a) in case the consolidation authorities omitted to, during the course of the consolidation operations, rather create a passage for the exercisings thereons of easementary rights by all the land owners concerned. (b) In case a passage became carved by the consolidation operation, for the exercisings thereons of easementary rights by all the land owners concerned, yet subsequently there being unlawful obstructions or hindrances by any person against their user by the concerned.

5. However, as above stated, there is no wrangle amongst the contesting litigants qua on the lawful termination of consolidation operations in the mohal concerned, rather a lawful passage hence becoming carved for the exercisings thereons of easmentary rights by all the land owners concerned. If so, the application preferred under Section 42 of the Act, was not maintainable nor any affirmative order thereons, was drawable by the competent authority concerned.

6. The effect, of a passage being carved rather after the lawful termination of consolidation operation in the mohal concerned, for exercisings thereons of easementary rights by all the land owners concerned, is that, only when there was an obstruction or hindrance(s) at the instance of any person concerned, qua the exercisings thereons, of easementary rights by the land owner(s) concerned, that thereupon, alone the land owners concerned, becoming ably facilitated to cast an application under Section 42 of the Act, before the competent authority concerned. However, there is no evidence on record suggestive, that there was any visible hindrances or obstacle(s), reared by any land owners concerned, against the person concerned, or his predecessor-in-interest against the exercisings thereons of easementary rights. Therefore, even on the above score, the petition filed under Section 42 of the Act, was not maintainable before the competent statutory authority.

7. Be that as it may, there is also no evidence on record suggestive, that there was any demur or protest raised by one Sadhu Ram, the vendor of the present petitioner, against the carvings of the passage,