Holding

The 1995 Consolidation Scheme for Shamlat Deh lands is valid and cannot be challenged under Section 42, as the High Court’s direction and the scheme’s compliance with Wajab‑ul‑Arz give it finality.

Summary

The case concerns the validity of a 1995 Consolidation Scheme for Shamlat Deh lands in three villages of Haryana, originally framed under the Punjab Village Common Lands (Regulation) Act, 1966 and later modified after a series of challenges. Earlier, the Deputy Commissioner had quashed the partition of these lands under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, prompting the High Court to direct a fresh scheme in accordance with the Wajab‑ul‑Arz. The 1995 scheme, prepared following that direction, was again challenged on the ground that it violated the Consolidation Act and that the earlier order of the Deputy Commissioner had not attained finality. The High Court dismissed the challenge, and the Supreme Court upheld that dismissal, holding that the scheme complied with the Wajab‑ul‑Arz, the High Court’s direction was final, and therefore the scheme cannot be revisited under Section 42. The Court also found no dispute over the extent of the Shamlat lands affected by river action. Consequently, the appeal was dismissed without costs.

Issues considered

The 1995 Consolidation Scheme for Shamlat Deh lands is valid despite earlier challenges.
Whether a scheme framed after a High Court direction can be challenged under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.
Whether the order of the Deputy Commissioner dated August 18, 1970 attained finality and can be reopened.
Whether the extent of Shamlat lands subject to river action affects the scheme’s validity.
Whether the scheme complies with the provisions of Wajab‑ul‑Arz.

Legislation cited

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948s. 21(2), s. 42
Land Revenue Acts. 117

Subjects

Consolidation SchemeShamlat Deh landsSection 42Wajab-ul-ArzPunjab Village Common Lands ActEast Punjab Holdings ActLand revenueRiver actionHigh Court directionSpecial Leave Petition

Judgment

BAGIRATH SINGH AND ANR. A
V.

STATE OF HARYANA AND ORS.

SEPTEMBER 6, 2005
B
[B.P. SINGH AND S.H. KAPADIA, JJ.]

Punjab Village Common Lands (Regulation) Act, 1966-East Pwyab
Holdings (Consolidatioi1 and Prevention of Fragmentation) Act, 1948-
Section 42--Comprehensive Consolidation Scheme framed for lands including
Shani/at Deh lands-Challenge of the Scheme before High Court as the C
consolidation of Sham/dt Deh lands was not in accordance with law-High
Court directing State to ji·ame a separate Scheme for such lands-New
Consolidation Scheme prepared as per the direction of the High Court-Writ
Petition challenging the new Scheme dismissed by High Court-Correctness
of-Held, on facts, the new Consolidation Scheme is a valid Scheme in D
relation to Sham/at Deh lands.

In 1966, a comprehensive Consolidation Scheme was framed by the
State under the provisions of the Punjab Village Common Lands
(Regulation) Act, 1966 for consolidation of lands including Shamlat Deh
lands. A petition was filed by some right holders before Deputy E
Commissioner under section 42 of the East Punjab Holdings (Consolidation
and Prevention of Fragmentation) Act, 1948 challenging the 1966 Scheme.
The Deputy Commissioner quashed the partitioning ofShamlat Deh lands
being illegal and patently unjust.
F
A Consolidation Officer passed an order giving certain directions as
to the manner in which the order of the Deputy Commissioner has to be
implemented, A Writ Petition was filed challenging the order of the
Consolidation Officer. The High Court quashed the order of the
Consolidation Scheme with respect to Shamlat Deh lands in accordance
with Jaw keeping in view Sharl Wazab-ul-Arz and rights of right holders. G
Pursuant to the order of the High Court, a fresh Consolidation Scheme
was published in regard to Shamlat Deb lands in 1995. This Scheme was
again challenged by some of the right holders before High Court. The
High Court dismissed the Writ Petition, Special Leave Petition filed before
t
this Court was also dismissed. H
1161
1162 SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.
.. """:
A Some right holders filed another application under section 42 of the
Consolidation Act before Director Consolidation challenging the 1995
Scheme on the ground that the same was illegal being contrary to the
provisions of the Consolidation Act. The Dir~ctor dismissed the application
holding that the 1995 Scheme framed under the direction of the High
Court and which was subsequently upheld by the High Court could not
B
be challenged under section 42 of the Consolidation Act.

The 1995 Scheme and the order of the Director Consolidation were '
challenged by the appellants before High Court by filing a Writ Petition.
The High Court dismissed the Writ Petition. Hence the appeal before this
c Court.

Pursuant to the interim order of this Court, the State filed an affidavit
giving th~ area of Shamlat lands which was subject to river action. The
affidavit further stated that there had been no change in the area of
D Shamlat lands due to river action from 1966 upto the year 1995.

Dismissing the appeal, the Court
•
HELD : 1.1. The order of the Deputy Commissioner exercising
revisional jurisdiction under section 42 of the East Punjab Holdings
E (Consolidation and Prevention of Fragmentation) Act, 1948 was sought
to be implemented and an order was passed by the Consolidation Officer.
The same was challenged before the High Court and while setting aside
the order of the Consolidation Officer\ the High Court gave a direction
to the Consolidation Authorities to frame a Scheme with regard to Sham lat
F Deh, lands only in accordance with theI 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
1995 Scheme was framed. The Scheme was again challenged, though on
different grounds and the High Court dismissed the said writ petition. The
special leave petition preferred against the aforesaid order of the High
G 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 i ...
H by the High Court could not be challenged under Section 42 of the
BAGIRATH SINGH v. STATE OF HARYANA [B.P. SINGH, J.] 1163

Consolidation Act. This Court finds no error in the order of the Director A
Consolidation and the impugned judgment of the High Court.
[1169-B, C, D, E, F]

1.2 There is really no controversy as to the extent of the land which
constituted the Sham lat Deh of the three villages. The Scheme as published B
and approved in the year 1995 is a valid Scheme in relation to Shamlat
Deh lands and was framed on the basis of valuation oflands as they existed
when the Scheme of 1966 was framed. [1171-C)
'
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 646 of2000.

From the Judgment and Order dated 21.1.99 of the Punjab and Haryana
c
High Court in C.W.P. No. 18310 of 1998.

P.C. Jain and Mahendra Anand, Ms. S. Janani, Keertee Sinha and S.K.
Verma for the Appellants.
D
R.F. Nariman and S.P. Goyal, Ms. Arnita Gupta, Prashant Rana,
Himanshu Upadhyay, Ajay Siwach, Pardeep Dahiya and T.V. George for the
Respondents.

The Judgment of the Court was delivered by
E
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 C\VP 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 - Kairwali, Amritpur Khurd and Amritpur Kalan impugned F
the Consolidation Scheme in respect of Shamlat Deh lands of the aforesaid
three villages published on February 8, I 995. 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, I 987 and upheld by an order of the High Court dated G
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 H
1164 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A 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
B 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
C 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 :-
D
"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 Sham lat of all the three
E villages. Whether it is recovered after the loss 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
F 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
G 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.

H In this background we may notice the relevant facts of_ this ,-6ase.
BAGIRATH SINGH v. STATE OF HARYANA [B.P. SINGH, J.] I 165

Consequent upon initiation of consolidation operations, a scheme was A
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 B
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. C
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 D
possession of land effected.

The Consolidation Scheme came to be challenged by one Sultan Singh

-
before the Deputy Commissioner, Kamal exercising powers under Section 42
of the East Punjab Holdings (Consolidation and Prevention offragmentation)
Act, 1948 (hereinafter referred to as 'the Consolidation Act'). Invoking his E
revisional jurisdiction it was contended that re-partition Scheme framed by
the Co~1olidation 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 F
Commissioner exercising the power of revisional authority under. Section 42
oftfie 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 t9 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 Sham lat Deb will G
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
< t
of the then existing entries in the revenue record. Consequential changes H
l 166 SUPREME COURT REPORTS (2005] SUPP. 2 S.C.R.

A required to be made in the Consolidation Scheme shall be 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, l 970.

B Learned counsel for the respondents submitted that this order passed
by the Deputy Commissioner, Kamal 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
C 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, l 979 affirmed the order dated August 18, 1970 noticing that the
Scheme in relation to the Shamlat land had been revoked and that the
D 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, l 986 purported to give effect to the order of the Deputy Commissioner,
E Kamal dated August 18, l 970 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. 3143of1986. Before the High Court the State conceded
that the aforesaid order dated February 5, 1986 could not be sustained and
F ought to be quashed. Accordingly the aforesaid order dated February 5, l 986
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
G 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
H lands only.
BAGIRATH SINGH v. STATE OF HARYANA [B.P. SINGH, J.] ll67

Pursuant to the order of the High Court a fresh Scheme was published A
in regard to Shamlat Deh lands on February 8, I 995. 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 I 965
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 B
per value had been incorporated in the Scheme. This clearly discloses that
the Scheme framed related to the Shamlat Deb lands only which formed
subject matter of the comprehensive Cpnsolidation Scheme framed in the year
I 966. Since that part of the Consolidation Scheme which dealt with the
Shamlat Deb lands had been quashed, the Scheme was framed with a view
to provide a Scheme for the Shamlat Deb lands of the three villages. c
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 D
holders out of the entire village had challenged only a pan 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 Scheme did not be succeed. A special leave petition was preferred
against the judgment and order of the High Court doted November 16, 1995
but the same was also rejected by this Court on May 2, 1996. E

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 F
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 G
Case No.148 of 1996 by his order dat~d 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 I 0, 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 H
1168 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.
,. ..
A 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
B 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 io C.W.P. No. 18310of1998. The High
Court by its impugned judgment and order dismissed the writ petition.

c 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
D 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
E 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 challenge<l in this appeal.
F
Learned counsel for the appellants submitted that the High Court was
in error in thinking that the order of the Deputy Commissioner, Kamal, 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
G 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
H Scheme ceased to exist and, therefore, in its place another Scheme had to be
•
BAG!RATH SINGH v. STATE OF HARYANA [B.P. SINGH, J.] 1169
"
framed. This is what was done by framing a Scheme confined to the Sham lat A
Deh 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 B
be implemented and an order was passed by the Consolidatio'1 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 !O,
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 C
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. 4938of1995 and the
High Court by its order dated November 16, 1995 dismissed the said writ D
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 E
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.
F
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 :- G

"After some argument Counsel for the parties are agreed that
the direction of the High Court in its order dated !0th 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 H
1170 SUPREME COURT REPORTS [2005] SUPP. 2.S.C.R.

A 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.
B
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
c 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.
D
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 Holdings, stating
that the area of Sham lat lands which was subject to river action of all the three
E villages was 16806 Bigha 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
F Shamlat of all the three villages and was entered as Khewat No. l 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
G for re-partition in accordance with the 'provisions of the Wajab-ul-Arz. The
area available was 14205 Bigha IO Biswa only, after excluding lands given
to the State of Uttar Pradesh under the Dix it 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 i
H lands were taken away and submerged in the river Yamuna due to river action,
BAGIRATH SINGH v. STATE OF HARYANA (B.P. SINGH, J.] 1171

and the remaining land i.e. 9607 Bigha 5 Biswa was re-partitioned among all A
the right holders of the three villages according to the provisions of Wajib-
ul-Arz.

It was vehemently contended on behalf of the respondents ttat in view
of the order of this Court dated March 30, 2005 there was no scope for further B
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, Kamal, the area of Shamlat land has been stated to be 16660
Bigha I 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 c
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.
D
We, therefore, find no merit in this appeal and the same is accordingly
dismissed but without any order as to costs.

B.S. Appeal dismissed.