http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (civil)  646 of 2000

PETITIONER: Bagirath Singh and another                                      

RESPONDENT: State of Haryana and others                                   

DATE OF JUDGMENT: 06/09/2005

BENCH: B.P. SINGH & S.H.  KAPADIA  

JUDGMENT: J U D G M E N T  

B.P. SINGH, J.

       This appeal by special leave is directed against the judgment  and order of the High Court of Punjab and Haryana at Chandigarh in  CWP No. 18310 of 1998.  The appellants/petitioners claiming to be  the proprietors and co-sharers in the Shamlat Deh lands which  comprised in three villages, namely \026 Kairwali, Amritpur Khurd and  Amritpur Kalan impugned the Consolidation Scheme in respect of  Shamlat Deh lands of the aforesaid three villages published on  February 8, 1995.  They also challenged the order of the Director of  Consolidation, Haryana, in Case No. 148 of 1996 dated June 6, 1997  whereby he held that the aforesaid Scheme had been prepared in  accordance with the direction of the High Court contained in its  judgment dated August 10, 1987 and upheld by an order of the High  Court dated November 16, 1995.  The High Court by its impugned  judgment and order dismissed the writ petition and held the  Consolidation Scheme so published to be valid and in accordance with  law.  

       Before we advert to the facts of the case, we may notice that in  accordance with the provisions of the Punjab Village Common Lands  (Regulations) Act, 1961 the Shamlat lands except those which were  affected by river action and some other specified categories vested in  the Panchayat.  The Shamlat Deh was, therefore, by and large  confined to the lands which were affected by river action after the  year 1961.  In view of the change of course of river Yamuna the lands  were subjected to alluvion and delluvion and a provision was made in  Douie Land Records Manual to the effect that the lands which were  recovered shall be maintained as Shamlat Deh of all the three villages  i.e. the land which is recovered after the loss of any Khewat or  recovered as excess area.  The land owners and the occupancy tenants  who had lost their land were held entitled to reclaim the recovered  area for the purpose of cultivation and the land had to be distributed to  them in proportion to the area which they had lost by reason of  submersion of their lands with the change of course of the river.   Necessary provision was made in the Wajab-ul-Arz during the first  settlement held sometime in 1906-1907 which provided as follows :-

"The method of assessment in all the three paties is in  equal shares and inside the paties it is in accordance with  Hasab Rasad Zare Khewat on the basis of the land  revenue as assessed according to settlement of Mr.  Douie.  It has also been shown that whatever land is  recovered from the village is mentioned as Shamlat of all  the three villages.  Whether it is recovered after the loss

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

of any Khewat or is recovered as excess area.  The  landowners and the occupancy tenants who have lost  their land are entitled to retain the recovered area and  cultivate the same.  At the time of partition the area in the  Shamlat which has been recovered will be given to only  those land owners and occupancy tenants in the first  instance in proportion to the area which they have lost  since the settlement of Mr. Douie.  Thereafter the excess  area of the Shamlat will be distributed according to the  rate of assessment of Mr. Douie."

       In the instant appeal we are concerned only with such Shamlat  Deh lands which were subject matter of Consolidation Scheme framed  in the year 1966.  In this appeal we are not concerned with the  Consolidation Scheme in respect of other lands of the villages in  question which has attained finality and is not subject matter of  challenge.

       In this background we may notice the relevant facts of this case.   Consequent upon initiation of consolidation operations, a scheme was  finalized by the Settlement Officer on November 29, 1966.  The said  Scheme came to be challenged by some of the right holders on various  grounds before the High Court in C.W.P. No. 756 of 1967.  There  were various objections raised such as that all the objections filed  under Section 21(2) had not been disposed of and, therefore, change  of possession was not justified.  It was also objected to on the ground  that the Scheme framed in relation to Shamlat Deh Lands was not in  consonance with Wazab-ul-Arz.  The writ petition was not entertained  by the High Court which held that the parties must avail of the  remedies provided under the Act.  It was also observed that if  provisions made in the Wazab-ul-Arz were applicable, the  Consolidation Authorities must take that into account.  The writ  petition was so disposed of on November 29, 1968.   

       On July 4, 1969 the Settlement Officer passed an order for  change of possession in accordance with the Scheme since it appeared  from the Report of the Consolidation Officer dated June 6, 1969 that  almost 90% of the right holders were keen that the Scheme should be  implemented and change of possession of land effected.   

       The Consolidation Scheme came to be challenged by one  Sultan Singh before the Deputy Commissioner, Karnal exercising  powers under Section 42 of the East Punjab Holdings (Consolidation  and Prevention of Fragmentation) Act, 1948  (hereinafter referred to  as ’the Consolidation Act’).   Invoking his revisional jurisdiction it  was contended that re-partition Scheme framed by the Consolidation  Authorities in respect of the three villages in question was not in  accordance with law.  In particular the petitioner challenged the  propriety and legality of Paragraph 11 of Part VI of the Consolidation  Scheme relating to the partition of Shamlat land of these three  villages.  The Deputy Commissioner exercising the power of  revisional authority under Section 42 of the Consolidation Act came  to the conclusion that the Scheme to the extent it provided for  partition of Shamlat Deh was illegal and patently unjust and could not  be allowed to stand.  He, therefore, allowed the petition and quashed  the provision of the re-partition Scheme in so far as it related to  partitioning of Shamlat Deh of these three villages.  He directed that  the Shamlat Deh will remain intact on a separate khewat and the  change of possession which may have occurred in pursuance of the  above provision of re-partitioning Scheme shall stand quashed.  He  further directed that the possession existing prior to the  implementation of the Consolidation Scheme shall be restored on the  basis of the then existing entries in the revenue record.  Consequential  changes required to be made in the Consolidation Scheme shall be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

made by the Consolidation Officer.  This order was made by the  Deputy Commissioner exercising revisional jurisdiction under Section  42 of the Consolidation Act on August 18, 1970.

       Learned counsel for the respondents submitted that this order  passed by the Deputy Commissioner, Karnal was based on a  misconception that there was any partitioning of the Shamlat Deh  lands.  In fact all the Shamlat Deh lands were recorded in a separate  khewat of the three villages and this was done strictly in accordance  with the provisions of Wazab-ul-Arz.  It is however not necessary for  us to go into the correctness of that order.  

       It appears that another proceedings under Section 42 of the  Consolidation Act was initiated by one Badlu.  The Director  Consolidation by his order dated January 30, 1979 affirmed the order  dated August 18, 1970 noticing that the Scheme in relation to the  Shamlat land had been revoked and that the concerned right holders  had to be given back possession of the land in accordance with that  order.  

       It appears that the Consolidation Officer by his order dated  February 5, 1986 purported to give effect to the order of the Deputy  Commissioner, Karnal dated August 18, 1970 with regard to change  of possession of lands.  The Consolidation Officer, therefore, gave  certain directions as to the manner in which the order had to be  implemented.  However, the Order of the Consolidation Officer dated  February 5, 1986 was challenged before the High Court in C.W.P. No.  3143 of 1986.  Before the High Court the State conceded that the  aforesaid order dated February 5, 1986 could not be sustained and  ought to be quashed.  Accordingly the aforesaid order dated February  5, 1986 was quashed.  The High Court further gave a direction that the  Consolidation Authorities shall proceed to frame a scheme with  respect to the land subject to alluvion and delluvsion (Shamlat Deh  lands) only in accordance with law keeping in view Shart Wazab-ul- Arz and the rights of the right holders.  It would thus appear from the  order of the High Court dated August 10, 1987 that a direction was  made by the High Court to frame a Consolidation Scheme only with  respect of Shamlat Deh lands.  This order does not touch the other  provisions of the Consolidation Scheme which was framed in the year  1966, and was confined to the framing of the Scheme in relation to  Shamlat Deh lands only.

       Pursuant to the order of the High Court a fresh Scheme was  published in regard to Shamlat Deh lands on February 8, 1995.  The  said Scheme which has been annexed to this Appeal as Annexure P/5  records the fact that the type and the value of the lands had already  been assessed in the year 1965 which had been found to be correct on  the spot and which had been duly attested in the open session.   Accordingly the list of the khasra numbers as per value had been  incorporated in the Scheme.  This clearly discloses that the Scheme  framed related to the Shamlat Deh lands only which formed subject  matter of the comprehensive Consolidation Scheme framed in the year  1966.  Since that part of the Consolidation Scheme which dealt with  the Shamlat Deh lands had been quashed, the Scheme was framed  with a view to provide a Scheme for the Shamlat Deh lands of the  three villages.   

The said Scheme was approved in due course but the same was  again challenged before the High Court by some of the right holders.   The said writ petition was disposed of by the High Court by its  judgment and order dated November 16, 1995.  The High Court  noticed that only 3 or 4 of the right holders out of the entire village  had challenged only a part of the Scheme by the aforesaid writ  petition.  The writ petition was, however, dismissed by the High Court  by its order dated November 16, 1995 and the second challenge to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

Scheme did not be succeed.   A special leave petition was preferred  against the judgment and order of the High Court dated November 16,  1995 but the same was also rejected by this Court on May 2, 1996.   

       After the dismissal of the writ petition filed by some of the right  holders, another application was filed by Surinder Singh and some  other right holders of the three villages in question under Section 42  of the Consolidation Act.  The Scheme was again challenged on the  ground that the same was illegal being contrary to the provisions of  the Consolidation Act.  It was also sought to be urged that since  questions of title were involved the matter could not be decided by the  Consolidation Authorities and should have been decided under  Section 117 of the Land Revenue Act.   

       The Director Consolidation, Haryana, dismissed the said case  being Case No.148 of 1996 by his order dated June 6, 1997.  He held  that the Consolidation Authorities had prepared the Consolidation  Scheme in accordance with the direction of the High Court dated  August 10, 1987.  The Scheme published on February 8, 1995 and  approved on May 5, 1995 had been challenged by some of the land  owners before the High Court by filing a writ petition which was also  dismissed on November 16, 1995 and the Scheme was upheld. In  these circumstances resort to Section 42 of the Consolidation Act was  not justified.  The Director, therefore, dismissed the petition and  upheld the Scheme.   

       The fresh Scheme published on February 8, 1995 and the order  of the Director Consolidation dated June 6, 1997 whereby he rejected  a fresh application under Section 42 of the Act were challenged before  the High Court of Punjab and Haryana at Chandigarh in C.W.P. No.  18310 of 1998.  The High Court by its impugned judgment and order  dismissed the writ petition.  

       It appears from the perusal of the judgment and order of the  High Court that the appellants did not challenge at all the Scheme  published on February 8, 1995.  However, it was contended that the  said Scheme and the order of the Director Consolidation dated June 6,  1997 were in the teeth of the order dated August 18, 1970 passed  under Section 42 of the Act, which had not been challenged at any  stage.  Therefore, the impugned order providing for partition of  Shamlat lands in three villages was illegal.  This contention was  repelled by the High Court holding that the aforesaid order was  challenged at every stage and ultimately the High Court gave direction  to decide the matter in the light of the entries contained in Wajab-ul- Arz.  Pursuant to the direction of the High Court the Scheme came to  be framed and therefore it could not be said that the order dated  August 18, 1970 attained finality having not been challenged.  The  High Court found that the Shamlat lands had been divided in  accordance with the entries in Wajab-ul-Arz and there was, therefore,  no question of title involved.  The judgment of the High Court has  been challenged in this appeal.         Learned counsel for the appellants submitted that the High  Court was in error in thinking that the order of the Deputy  Commissioner, Karnal, passed on August 18, 1970 and affirmed on  January 30, 1979 was ever the subject matter of challenge.  In fact that  order had attained finality.  On the other hand counsel for the  respondents contended that the said order was non est having been  passed in clear violation of the proviso to Section 42 of the  Consolidation Act because no notice was given to the other parties  concerned.  He further submitted that even assuming that a part of the  Consolidation Scheme which related to Shamlat Deh lands had been  quashed by the revisional authority exercising powers under Section  42 of the Consolidation Act, that part of the Scheme ceased to exist  and, therefore, in its place another Scheme had to be framed.  This is  what was done by framing a Scheme confined to the Shamlat Deh

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

lands on February 8, 1995.  In the peculiar facts and circumstances of  this case we do not consider it necessary to refer to the arguments  advanced at the Bar regarding the correctness or otherwise of the  orders passed by the Consolidation Authorities dated August 18, 1970  and January 30, 1979.  It is enough to notice that when the order dated  August 18, 1970 was sought to be implemented and an order was  passed by the Consolidation Officer on February 5, 1986, the same  was challenged before the High Court and while setting aside the  order of the Consolidation Officer dated February 5, 1986 the High  Court gave a direction in C.W.P. No. 3143 of 1986 on August 10,  1987 to the Consolidation Authorities to frame a Scheme with regard  to Shamlat Deh lands only in accordance with the provision of Wajab- ul-Arz and rights of the right holders.  This order of the High Court  was not challenged and attained finality.  In obedience to the orders of  the High Court the Scheme was framed on February 8, 1995.  The  Scheme was again challenged, though on different grounds, in C.W.P.  No. 4938 of 1995 and the High Court by its order dated November 16,  1995 dismissed the said writ petition.  The special leave petition  preferred against the aforesaid order of the High Court was also  dismissed by this Court.  Thereafter again when the Scheme was  sought to be challenged by some of the land holders by filing another  application under Section 42 of the Consolidation Act, the same was  rejected by the Director Consolidation holding that the Scheme  framed in accordance with the direction of the High Court and which  was upheld by the High Court by its judgment and order dated  November 16, 1995 could not be challenged under Section 42 of the  Consolidation Act.   He accordingly dismissed the application filed  before him under Section 42 of the Consolidation Act.

       We do not find any fault with the order of the Director  Consolidation dated June 6, 1997 nor do we find any error in the  impugned judgment and order of the High Court.  

       Before parting with the judgment we may notice that on March   30, 2005 this Court passed the following order :-    

"       After   some argument Counsel for the parties are  agreed that the direction of the High Court in its order  dated 10th August, 1987 was to frame a scheme in respect  of Shamlat Deh lands which were subject to river action  in the year 1965-1966.  The real dispute between the  parties before us is the extent of land which is subject to  such river action.  Learned counsel for the Appellants  contends that the extent of the land subject to such river  action is what is given by him in his affidavit filed in this  Court at page 208 of the paper book, while Counsel for  the private Respondents disputes this fact.

       In the circumstances, we direct the State of  Haryana to file an affidavit before this Court giving the  break up of the lands which are the subject matter of the  Scheme under challenge indicating clearly to what extent  the Shamlat Deh consists of lands subject to river action,  and other lands not affected by river action included in  the Shamlat Deh.  These particulars must be given by  reference to the schemes framed in the year 1965 and in  the year 1995.  A copy, in advance, shall be given to the  parties by the Counsel for the State and they may submit  their comments, if any, within a week thereafter.

       Put up after three weeks."

              Pursuant to the order aforesaid, an affidavit was filed on behalf  of the State of Haryana affirmed by the Director, Consolidation of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

Holdings, stating that the area of Shamlat lands which was subject to  river action of all the three villages was 16806 Bight 13 Biswa.  After  making minor adjustments, the lands available were 16660 Bigha 1  Biswa.  Apart from the aforesaid lands there was no other Shamlat  Deh lands in the year 1965-1966.  It was further stated that in the  Scheme framed in 1966 there was no provision for the re-partition of  the above mentioned Shamlat lands and same were kept intact as  Shamlat of all the three villages and was entered as Khewat No.1 of  the Khatauni and final Jamabandi.  After the year 1965-66 there had  been no change in the area of Shamlat lands due to river action upto  the year 1995.  It was further stated that the Scheme of 1995 had been  framed only in respect of Shamlat lands pursuant to the direction of  the High Court dated August 10, 1987.  The affidavit further gave the  break-up of the lands that remained for re-partition in accordance with  the provisions of the Wajab-ul-Arz.  The area available was 14205  Bigha 10 Biswa only, after excluding lands given to the State of Uttar  Pradesh under the Dixit Award and the lands allotted to displaced  persons as per the orders of the State Government.  Out of the area  that was available, 4598 Bigha 5 Biswa was given to the right holders  whose lands were taken away and submerged in the river Yamuna due  to river action, and the remaining land i.e. 9607 Bigha 5 Biswa was  re-partitioned among all the right holders of the three villages  according to the provisions of Wajib-ul-Arz.

       It was vehemently contended on behalf of the respondents that  in view of the order of this Court dated March 30, 2005 there was no  scope for further argument and the appeal should be dismissed on that  ground alone.  We have also noticed that even in the order of August  18, 1970 passed by the Deputy Commissioner, Karnal, the area of  Shamlat land has been stated to be 16660 Bigha 1 Biswa.  There is,  therefore, really no controversy as to the extent of the land which  constituted the Shamlat Deh of the three villages.  However, it is not  necessary to dilate on this aspect of the matter any further in view of  our finding that the Scheme as published and approved in the year  1995 is a valid Scheme in relation to Shamlat Deh lands and was  framed on the basis of valuation of lands as they existed when the  Scheme of 1966 was framed.  

       We, therefore, find no merit in this appeal and the same is  accordingly dismissed but without any order as to costs.   

CIVIL APPEAL NO. 647 OF 2000

Bagirath Singh and another                                     \005 Appellants

Versus

State of Haryana and others                                  \005 Respondents

J U D G M E N T  

B.P. SINGH, J.

This Civil Appeal has been preferred by the appellants against  the order of the High Court dismissing the review petition filed by  them for review of the judgment and order of the High Court in Civil  Writ Petition No. 18310 of 1998.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

       We have today dismissed Civil Appeal No.646 of 2000 arising  out of CWP No.18310 of 1998.  We, therefore, find no merit in this  appeal and the same is accordingly dismissed.                                                                                                                         \005\005.\005\005\005\005\005\005\005.J                                        ( B.P. SINGH )

                                      \005\005\005\005\005\005\005\005\005J                                                    ( S.H.  KAPADIA )   

New Delhi September 6, 2005  

WRIT PETITION NO. 413 OF 2003

Dharam Veer Singh & others                                     \005 Petitioners

Versus

State of Haryana and others                                  \005 Respondents

J U D G M E N T  

B.P. SINGH, J.

       This Writ Petition has been filed by some of the land holders  who are affected by the Consolidation Scheme framed in regard to  Shamlat Deh lands of the concerned villages.  The said scheme was  challenged by some other proprietors and co-sharers in Civil Writ  Petition No.18310 of 1998 before the High Court of Punjab and  Haryana at Chandigarh.  The said writ petition having been dismissed,  Civil Appeal No.646 of 2000 was preferred before this Court by  Special Leave.  Despite the order of status-quo granted by this Court  pending the appeal, the petitioners alleged that they were being  displaced since they were not parties in the writ petition filed before  the High Court.   

       They, therefore, filed the instant writ petition which has been  heard along with Civil Appeal No.646 of 2000.

       We have delivered our judgment today dismissing the Civil  Appeal No. 646 of 2000.   We find no merit in this writ petition filed  by the petitioners and the same is accordingly dismissed.