CWP No.5578 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.5578 of 2004 Date of decision:23.08.2010 Janeshar and others ...... Petitioners VERSUS State of Haryana through Secretary to Government of Haryana, Revenue Department, Haryana Civil Secretariat, Chandigarh and others ......Respondents CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA. Present: Mr.Ramesh Hooda, Advocate for the petitioners. Mr.D.Khanna, Addl.A.G., Haryana for respondents no.1 to 4. Mr.S.S.Dinarpur, Advocate for respondents no.5 to 21. ***** RAJIVE BHALLA.J (Oral) The petitioners pray for issuance of a writ in the nature of certiorari for quashing the orders dated 16.03.2002 and 16.12.2003, passed by the Settlement Officer, Rohtak and the Director of Consolidation of Holdings, Haryana, respectively. The petitioners are residents of village Nanhera, Sub-Tehsil Bapoli, District Panipat, situated on the banks of river Yamuna. The land in dispute, is subject to alluvian and diluvian as the river Yamuna, alters its course. The State of Haryana, issued a notification dated 02.04.1974, under Section 14(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Consolidation Act), for consolidation of land holdings of village Nanhera. The scheme was subsequently withdrawn but was followed by another similar notification, which was also withdrawn. CWP No.5578 of 2004 -2- On 05.03.1990, the State of Haryana, issued a fresh notification declaring its intention to proceed with consolidation of 856 acres of land in village Nanhera. The petitioners filed objections before the Settlement Officer, praying that as disputes regarding ownership of land that forms part of Shamilat Khewat, created by river action, have arisen, the land cannot be partitioned by consolidation authorities. The Settlement Officer, rejected this objection vide order dated 16.03.2002 Aggrieved by this order, the petitioners filed a petition under Section 42 of the Consolidation Act, before the Director Consolidation, Haryana, who dismissed the petition by holding that as all parties concerned are proprietors, the claim of the petitioners is unfounded and without merit. Counsel for the petitioners submits that as a large parcel of land, created by river action has not been included in the Shamilat Khewat, the consolidation proceedings are a nullity. It is further submitted that the petitioners and other co-sharers have obtained decrees from civil courts which define their shareholdings, in the Shamilat Khewat. As private respondents contest the correctness of these decrees, consolidation authorities have no authority to partition the Shamilat Khewat, in view of the express bar contained in Section 16(A) of the Consolidation Act. Counsel for the State of Haryana and counsel for the private respondents submit that land in the revenue estate of the village Nanhera has been included in the scheme. The petitioners have failed to refer to any parcel of land, by reference to the khewat, khatauni or khasra numbers, which has been excluded. The petition is an attempt to delay consolidation proceedings as the petitioners do not wish to part with shamilat land, in their possession. It is further argued that as no question of title arises for CWP No.5578 of 2004 -3- consideration, the bar contained in Sections 16(A) does not apply. Furthermore, as Section 22 of the Consolidation Act, confers jurisdiction upon consolidation authorities, to prepare revenue records in accordance with Chapter IV of the Punjab Land Revenue Act, 1887, and to partition land held jointly, the writ petition should be dismissed. I have heard counsel for the parties and perused the impugned orders. Before proceeding to adjudicate the contentions raised by counsel for the parties, it would be appropriate, to reproduce Sections 16(A), 22 and 32 of the Consolidation Act. 16-A Power to make provision in the scheme to partition joint lands and joint occupancy tenancies:- (1) Notwithstanding anything contained in Chapter IX of the Punjab Land Revenue Act, 1887, except section 117, thereof the scheme prepared by the Consolidation officer may provide for the partition of land between joint-owners of land, or between joint-tenants of a tenancy in which a right of occupancy subsists, in accordance with the share of each owner or tenant in the land or tenancy, as the case may be, if- (a) such share is recorded under Chapter IV of that Act as belonging to him, or (b) the right of such owner or tenant to such share has been established by a decree which is still subsisting at the time of CWP No.5578 of 2004 -4- preparing the scheme, or (c) a written acknowledgment of such right has been executed by all persons interested in the admission or denial thereof. (2) When the scheme is confirmed under section 20, the land so partitioned shall, notwithstanding anything to the contrary contained in any law for the time being in force, be held by each such owner or tenant in full right of ownership or tenancy, as the case, may be, and the rights of other joint- owners or joint tenants in the land shall be deemed to be extinguished. 22. Preparation of record-of-rights. (1) The Consolidation Officer shall cause to be prepared a new record-of-rights in accordance with the provisions contained in Chapter IV of the Punjab Land Revenue Act, 1887 (XVII of 1887, in so far as these provisions may be applicable, for the area under consolidation, giving effect to the repartition and order in respect thereof made under the preceding section. (2) Such record of rights shall be deemed to have been prepared under Section 32 of the CWP No.5578 of 2004 -5- Punjab Land Revenue Act, 1887 (XVII of 1887). 32. Suspension of partition proceedings during currency of consolidation proceedings.-- After a notification under sub-section (1) of section 14 has issued, no proceedings under Chapter IX of the Punjab Land Revenue Act, 1887, in respect of any estate or a sub- division of an estate affected by the scheme of consolidation shall, subject to the provisions of Section 16-A, be commenced, and where such proceedings were commenced before the issue of the notification, they shall remain in abeyance, during the pendency of the consolidation proceedings.” Section 16(A) of the Consolidation Act, postulates that notwithstanding anything contained in Chapter IX of the Punjab Land Revenue Act, 1887, a Consolidation Officer, may while preparing a scheme, provide for partition of land belonging to joint owners except where a question of title arises in terms of Section 117 of the Punjab Land Revenue Act, 1887. In addition, Section 22 of the Consolidation Act, empowers, a Consolidation Officer, while giving effect to a re-partition under Section 21 of the Consolidation Act, to prepare a new record of rights in accordance with Chapter IV of the Punjab Land Revenue Act, 1887. The record of rights so prepared shall be deemed to have been prepared under Section 32 of the Punjab Land Revenue Act, 1887. Section 32 of the Consolidation CWP No.5578 of 2004 -6- Act, provides that after issuance of a notification under Section 14(1) of the Consolidation Act, proceedings under Chapter IX of the Punjab Land Revenue Act, 1887 (proceedings for partition) shall not be commenced before a revenue officer and where such proceedings were commenced before issuance of the notification, they shall remain in abeyance, during the pendency of consolidation proceedings. It is, therefore, beyond debate that the Consolidation Act empowers authorities to partition joint holdings, in accordance with the procedure prescribed by Chapter IX of the Punjab Land Revenue Act, subject however to a caveat that they shall not decide a question of title. The dispute that falls for adjudication is whether any question of title arises or was raised before the Settlement Officer or the Director Consolidation that would require consolidation authorities to keep partition proceedings in abeyance. A perusal of the pleadings and the arguments addressed by counsel for the petitioners do not reveal that any credible question of title arises much less was pleaded or raised before the Settlement Officer or the Director Consolidation. The petitioners plea that as certain proprietors have obtained decrees, declaring them owners of parts of shamilat land or that some land out of the shamilat khewat has been left out of consolidation proceedings as it has fallen in Uttar Pradesh, in my considered opinion does not raise a question of title. Apart from the fact that these decrees are collusive, they do not confer any right beyond the shareholding of the property recorded in revenue documents prepared before consolidation proceedings. The Shamilat Khewat, that vests in proprietors, shall have to be partitioned in accordance with the shareholding of proprietors reflected CWP No.5578 of 2004 -7- in the revenue record. The land in Uttar Pradesh cannot be partitioned by authorities in Haryana. I therefore, fail to comprehend as to what question of title arises for adjudication as would bar the Settlement Officer from proceeding with partition of the Shamilat Khewat, held jointly by the proprietors. In the absence of any question of title, consolidation authorities have right to proceed to order partition of the land in dispute. It would be necessary to mention that though the petitioners claim title of 32 kanals and 8 marlas (standard) and 51 kanals and 6 marlas, they have been allotted 32 kanals and 15 marlas (standards) and 63 kanals and 13 marlas (simple). In view of what has been stated hereinabove, the impugned orders are affirmed and the writ petition is dismissed, with no order as to costs. 23.08.2010 [RAJIVE BHALLA] shamsher JUDGE