CIVIL WRIT PETITION NO. 12795 OF 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: March 2 , 2010 Parties Name Sri Ram ..PETITIONER VERSUS State of Haryana etc. ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE JASBIR SINGH. PRESENT: Mr. Prem Nath Aggarwal, Advocate, with Mr. Sanjiv Gupta, Advocate, for the petitioner. Mr. Randhir Singh, Addl. A.G., Haryana, Mr. C.B. Goel, Advocate; Mr. Arun Palli, Senior Advocate, with S/Shri Tushar Sharma and Jai Bhagwan, Advocates, for respondent No. 10 Mr. Vikram Singh, Advocate, for the petitioners in CWP No.2915 of 2006. JASBIR SINGH, J. (oral) ORDER. This order will dispose of 26 writ petitions, i.e., C.W.P. Nos. 12795, 15230, 14012, 14013, 15194, 13467, 13536, 13564, 13646, 13668, 13669, 13693, 14533, 14559, 14802, 14803, 15225, 13427, 12732, 12659, 2915, 12562, 12579, 14387, all of the year 2006 and 18895 & 19139, both of 2005, involving similar questions of law and facts. To dictate order, the facts are being taken from C.W.P. No. 12795 of 2006. CIVIL WRIT PETITION NO. 12795 OF 2006 -2- Petitioner has filed this writ petition with a prayer for issuance of writ of certiorari to quash the order dated July 11, 2007 (P-11), passed by respondent No. 2, dismissing application filed by the petitioner under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short the Act). It is further prayer of the petitioner that a writ of mandamus be issued directing respondent No. 2 to allot land to the petitioner as per provisions of Sections 25 and 26 of the Act. It is case of the petitioner that between 1930 to 1945, predecessor-in- interest of the petitioner purchased share in Shamlat Deh land from the proprietors and a mutation, in the revenue record, was entered in his favour. It is an admitted fact that the dispute in these writ petitions pertains only to Shamlat Deh land falling in villages Amritpur Kalan, Amritpur Khurd and Keharwali. So far as land under the ownership of the right holders is concerned, regarding that separate consolidation proceedings were effected in these villages. Regarding Shamlat Deh land, consolidation proceedings were started in the year 1965-66. The scheme, to conduct consolidation proceedings, was challenged and ultimately it was set aside under orders, passed by this Court in Civil Writ Petition No. 3143 of 1986. A fresh consolidation scheme (P1/A) was prepared on February 8, 1995, which was objected to by the right holders including the petitioners. They failed in this Court and matter went up to the Hon'ble Supreme Court in Civil Appeal No. 646 of 2000, which was also dismissed on September 6, 2005. Thereafter, it appears that the land was allotted to the right holders as per law. No objection was laid to the same as per procedure provided under the Act. The petitioner, however, filed application under Section 42 of the Act in the month of October, 2005, which was dismissed by respondent No. CIVIL WRIT PETITION NO. 12795 OF 2006 -3- 2 vide the impugned order. Hence this writ petition. It is primary grievance of the petitioner that in the consolidation proceedings conducted in the year 1965, higher amount of land was allotted to them, however, in the subsequent proceedings, the allotment of land was drastically reduced. It is further grievance of the petitioner that despite sale of share in Shamlat Deh land by the private respondents, the authorities have wrongly allotted land to them out of the Shamlat Deh land at the time of repartition. On notice, reply was filed. Averments made by the petitioner were controverted by the official and private respondents. It was specifically stated that the consolidation proceedings were conducted and land was allotted as per provisions of the Scheme Annexure P1/A, validity of which has been upheld even by the Hon'ble Supreme Court. It has further been stated that as per the Scheme, area was allotted to the petitioner taking note of the conditions, mentioned in Sharat Wajib-ul-Arz of the village. The private respondents also averred that the area was allotted to them as per their entitlement. Under orders of this Court, an affidavit dated August 18, 2008, was filed by Shri Karam Chand Sharma, Assistant Consolidation Officer, Karnal, giving detail regarding repartition of the Shamlat Deh land. Shri Prem Nath Aggarwal and Shri Sanjeev Gupta, Advocates, counsel for the petitioners, have vehemently contended that during first consolidation proceedings, the petitioner along with his co-sharers were allotted land as per their entitlement. However, when allotment was made to them under the fresh Consolidation Scheme (A-1), they were allotted area only to the extent of about 72 Kanals. They argued with vehemence that the CIVIL WRIT PETITION NO. 12795 OF 2006 -4- authorities were not justified in decreasing area of land earlier allotted to them. The area was wrongly allotted to the right holders, who had already sold their share in the Shamlat Deh land to them. Primary grievance raised is regarding area measuring 4589 Bighas and 5 Biswas, which was allotted to the original land owners, right holders and proprietors of the village, whose land had sub-merged in the Yamuna river. It is contention of counsel for the petitioner that once the original land owners had sold their share, they were not entitled to get any allotment out of the Shamlat Deh land. Counsel for the petitioners prayed that the writ petitions be allowed, impugned order be set aside and direction be issued to the official respondents to allot more land to the petitioners as per their entitlement. Prayer of counsel for the petitioners has vehemently been opposed by Shri Arun Palli, Senior Advocate, who has put in appearance, for respondent No. 10. He, by making reference to the documents on record, argued that the averments made are very vague. Without giving particulars as to what was the entitlement of the petitioner and how he says that the land was wrongly allotted to the private respondents, challenge has virtually been laid to the consolidation scheme, which had become final upto the Hon'ble Supreme Court. He prayed that the writ petition having no substance be dismissed. It is apparent from the records that regarding Shamlat Deh land, in the above said three villages, consolidation scheme Annexure P1/A was notified on February 8, 1995. Some right holders were not satisfied. They laid challenge to the same before this Court. However, their writ petition bearing No. 18310 of 1998 was dismissed. Matter went to the CIVIL WRIT PETITION NO. 12795 OF 2006 -5- Hon'ble Supreme Court in Civil Appeal No. 646 of 2000, which was also dismissed on September 6, 2005. It has also come on record that all the three villages are situated on the bed of River Yamuna and land falling in those villages was subjected to alluvion and diluvion . It is also an admitted fact that the consolidation scheme, which was prepared in the year 1995, concerns land measuring 16660 Bighas and 1 Biswa. Before the Hon'ble Supreme Court, it was contention of the right holders that land ear- marked for partition under the fresh consolidation scheme Annexure P1/A, has wrongly been reduced. Taking note of the same, the Hon'ble Supreme Court passed the following order on March 30, 2005: “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.” In response thereto, affidavit was filed by Director, Consolidation of Holdings, Haryana, stating therein that after making minor adjustment, total land available for consolidation was 16660 Bighas and 1 Biswa. It was further stated that in the Scheme, which was prepared in the year 1965, there was no provision for repartition of the Shamlat Deh land. The consolidation scheme in the year 1995 was framed only in respect of above said land as per the directions of the Hon'ble High Court dated CIVIL WRIT PETITION NO. 12795 OF 2006 -6- August 10, 1987. The affidavit also gave break up of the land that was available for repartition in accordance with the provisions of the Wajib-ul- Arz of the village. After giving area to the State of Utter Pradesh under the Dikshit award and land allotted to displaced persons as per order of the State Government, only an area measuring 14205 Bighas and 10 Biswas was available for repartition. In that affidavit, it was further stated that out of the area so available, 4598 Bighas and 5 Biswas was reserved for the right holders, whose land was taken away and submerged in the Yamuna River. The remaining area of 9607 Bighas and 5 Biswas was repartitioned amongst all the right holders of the three villages according to the provisions of the Wajib -ul-Arz. All the contentions, noted above, were noticed by the Hon'ble Supreme Court and ultimately, it was held that there was no controversy as to the extent of the land, which constituted Shamlat Deh of the three villages and accordingly appeal was dismissed. By filing this writ petition, the petitioner again has made an attempt to lay challenge to the consolidation scheme, which was affirmed upto the Hon'ble Supreme Court, as has been stated earlier. Relevant provisions of the consolidation scheme notified on February 8, 1995, read thus: “1. AREA UNDER CONSOLIDATION. The total area after incorporation of the area recovered from alluvision and deluvision, inclusive of mutation and Farad Badars according to Khatoni Ishtemal for the year 1965-66 is 16660 Bighas 1 Biswa, which is equivalent to 3471 Acres, the details of the type of the land are mentioned as under: Sailab 12986 Bighas 14 Biswas, CIVIL WRIT PETITION NO. 12795 OF 2006 -7- Banjar Kadeem: 329 Bighas 3 Biswas Ghair Mumkin 3344 Bighas 4 Biswas; Total: 16660 Bighas 1 Biswa. There is no graveyard, pacca roads or Abadi Bandobasti in all the three villages. Only on account of Government orders pertaining to the file of allusions and delusion for the year 1984-85 in accordance with Dikshit Award a decrease of this much area has taken place from the area of consolidation of all the three villages which has been excluded from the consolidation and the remaining area would be subject to the consolidation. Whatever increase or decrease is found after fresh measurement that will be incorporated in the relevant Khatas as per correction by the 'Badars..” In item No. 2 of the Consolidation Scheme, it was specifically mentioned that land measuring 2150 Bighas and 1 Biswa would be exluded from the consolidation proceedings as per Dikshit award. Evaluation of the land was also assessed to effect repartition of the same. In item No. 4 of the scheme, provision was made for reservation of area to be used for common purposes. Provision regarding partition of Shamlat Deh land reads thus: “VI.PARTITION OF THE SHAMLAT LAND OF ALL THE THREE VILLAGES JOINTLY:- Shamlat land in all the three villages as per the individual names of the villages, the area of which comes to 11666 Bighas 10 Biswas. Out of this land some area has been allotted to the allottees which will be brought under partition as per CIVIL WRIT PETITION NO. 12795 OF 2006 -8- instructions and the same would be entered in their proprietorship holding Khewat and area under possession, would be given to the person in possession without payment of rent under the previous Khewat Shamlat check of all the three villages and the non-proprietors have built Abadi on area which has been measured and fixed at the spot, the list of which has been annexed with the scheme after verification in the open session. This areawill be entered in the name of the persons in possession without payment of rent as earlier (Badstur) in the joint area of all the villages. Out of the remaining area, the land which has been kept reserved from common purposes under para No. 4 will be utilised and the same would be entered in the Khewats of all the villages. After the utilisation of the common purposes land the remaining land would be distributed among the proprietors in accordance with Sharat Wajib-ul-Arz according to the mode of measurement of the holding.” Provision was also made regarding partition of land under the possession of Gair Morusian. Para No. 10 of the Scheme reads thus: “Para No. 10: Partition of land Gair Marusian:- In every block of every village such area is in existence which has been prepared from Jamabandi 1944-45 of village Keharwal and year 1962-63 of village Amritpur Kalan-Khurd and Khasra Girdawari of 1965 which has been entered in Scheme after attestation in general session. At the time of partition the persons in possession as tenant at will, or in CIVIL WRIT PETITION NO. 12795 OF 2006 -9- adverse possession or interest at will on account of reclamation will be given land at the major portion as per scheme.” Before proceeding further, it is necessary to note down provisions of the Wajib-ul-Arz of the village, which was also noted by the Hon'ble Supreme Court in its judgment dated September 6, 2005 (P-1). Relevant provision, which was made in the Wajib Ul Arz, framed during the first settlement, held in the year 1906, reads as under: “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 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 porportion 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.” This Court feels that respondent No. 2 has rightly passed a detailed order (P-11) on July 11, 2007, dismissing application filed by the CIVIL WRIT PETITION NO. 12795 OF 2006 -10- petitioner. A reading of the application made by the petitioner clearly indicates that virtually an attempt was made to rake up the same matter, which had gone up to the Hon'ble Supreme Court and had become final. Following prayer was made by the petitioner in his application under Section 42 of the Act: “It is, therefore, respectfully prayed that the provisions in the scheme and the repartition whereby the petitioner has been allotted lesser land than to which he is entitled may be quashed and the petitioner may be allotted his full area. It is further prayed that status quo as it existed at the time of framing of the scheme may be ordered to be maintained till the decision of the Revision Petition.” It is not in dispute that when the first scheme of the Shamlat Deh land was framed in the year 1996, area, which was subject matter of dispute in Dikshit award, was not the subject matter of controversy because that award was pronounced much thereafter. In that scheme, there was no provision for separating area allotted to the displaced persons. There was also no provision to allot area to the Gair Morusian, who were in possession of the Shamlat Deh land. There was also no provision for allotting land to those original owners, whose land had sub-merged in the River bed, whereas, under the new Scheme, all those provisions were made. The entire position was made clear before the Hon'ble Supreme Court and virtually it was approved when appeal filed by the right holders was dismissed on September 6, 2005 (P-1). A reading of the application moved by the petitioner, indicates that an attempt was made to reagitate the same CIVIL WRIT PETITION NO. 12795 OF 2006 -11- matter which had become final between the parties. Respondent No. 2, after noting arguments of the petitioner and other similarly situated persons, has reiterated those very facts, which were noted by the Hon'ble Supreme Court in its judgment, mentioned above. It was further said that as per provisions of the consolidation scheme, the land was allotted to the petitioners taking note of the provisions of the Wajib-ul-Arz of the village. In that regard, it was observed as under: “Wazib-ul-Arz is customary law being followed in these parts at the time of settlement. I find that the new scheme of 1995 has been framed in consonance with these provisions of Wajib- u-Arz. Also the Sharat Wajib -Ul-Arz as detailed above and has been incorporated in the scheme as item No. 6. The total Shamlat lands of the three villages was 16660 Bigha 1 Biswa out of which area measuring 2187 Bigha 3 Biswa has gone to Uttar Pradesh after announcements of Dikshit Award and 4589 Bighas 5 Biswa has been allocated to original land owners , right holders and proprietors of the village whose area had submerged in Jamuna river as per the above provisions of Wajib-ul-Arz and area measuring 267 Bigha 8 Biswa has been allotted to rehabilitate the displaced persons as per the orders of the State Government. Consolidation has been done after converting this area into standard acres as per the valuation, which was made in the year 1966 and even the Hon'ble Apex Court has found the valuation in order. Thus, 9607 Bigha 5 Biswa Shamlat land was available for consolidation and land has been allotted to the CIVIL WRIT PETITION NO. 12795 OF 2006 -12- applicants after ascertaining their shares in the Shamlat land on the basis of land revenue being paid by them and also on the basis of valuation of land based on quality of soil and means of irrigation available for a particular chunk of land. A report based on the revenue record was also called from the present Consolidation Officer, Karnal. As per the report, which is placed on file, applicants purchased ¼ share of haq shamlat of total land measuring 611 Bigha 1 Biswa in Khewat No. 7, 11, 13, 14 and 15 vide mutation No. 317 and 319 in village Amritpur Kalan. This land also includes the applicant's share in shamlat Patis. As per the consolidation Scheme, land revenue apportioned to the share of the applicant works out to Rs. 17.89 paise. On the principle of Hasab Rasad Zar Khewat, his share works out to 35 Kanals 2 Marlas standard area that is 50 Bigha 0 Biswa ordinary area. As per his entitlement, the applicant was allotted 36 Kanals 2 Marlas standard area and 70 Kanal 12 Marla ordinary, which is in order as per revenue record. The applicant is in possession of land in excess of his share in shamlat land. At no juncture, officers of Consolidation Department have gone beyond the Record of Rights or militated against the provisions of the new scheme, which has been upheld by the Hon'ble Apex Court. The contention made by the learned Counsel for the applicants that orders under Section 21 were passed by subordinate Court behind the back of the applicants without affording them an opportunity of being heard, is also unsustainable because as per the official CIVIL WRIT PETITION NO. 12795 OF 2006 -13- records the claims and objections of the affected parties were heard by the Consolidation Officer and Settlement Officer in the Jalsa-e-am.” This Court is of the view that the order passed is perfectly justified. To say that less land has been allotted to the petitioner and to the contrary more land has been allotted to the private respondents, nothing has been brought on record. Order of the Consolidation Officer, vide which land was allotted to the parties, was never challenged and it has also not been placed on the record of this Court for its perusal. In the writ petition, it has nowhere been stated as to what was the total entitlement of the private respondents in the Shamlat Deh land and after purchase of share out of that land, whether anything more remains available with the private respondents or not. It is nowhere stated as to how much land was allotted to the petitioners during repartition. Even before this Court, the petitioner has failed to refer to any document, which shows the entitlement of the petitioner, the private respondents and other right holders, for whom land measuring 4589 Bighas and 5 Biswas was allocated. There may be many right holders, whose land had submerged in the River bed. Definitely they are entitled to get entitled to the allotment of land in lieu thereof. This was the stand of the State of Haryana even before the Hon'ble Supreme Court when appeal was dismissed vide order Annexure P-1. No case is made out for interference. Dismissed. CWP No. 2915 of 2006: In so far as CWP No. 2915 of 2006 is concerned, when notice of motion was issued on February 27, 2006, following order was passed by CIVIL WRIT PETITION NO. 12795 OF 2006 -14- this Court. “Learned counsel for the petitioners states that the point involved in this petition has already been raised in CWP No. 18895 of 2005, in which notice of motion has been issued for 24.4.2006. In view of the above, notice of motion for the aforesaid date. Interim order in the same terms.” Thereafter, writ petition was admitted on September 26, 2006. When connected writ petitions were dismissed, counsel for the petitioner stood up and said that his case is separate from others. Such an argument is not appreciated. Be that as it may, counsel was heard on merits. Petitioners are residents of village Lalupura, tehsil and district Karnal. In this writ petition, they have laid challenge to the order dated October 6, 2005, passed by respondent No. 1, dismissing their appeal filed under Section 42 of the Act. Before respondent No. 2 it was their grievance that land, which was the ownership of their village, has wrongly been included under the ownership of three villages, namely, Kehrawali, Amritpur Kalan and Amritpur Khurd. It was their prayer that their land be separated and be allotted to them as per their entitlement. This Court feels that the grievance raised has rightly been rejected by respondent No. 1 on the ground that the action taken by the revenue authorities more than 81 years earlier cannot be interfered with by the consolidation authorities. Furthermore, as per factual position on record, consolidation in this village was conducted in the year 1966. In the consolidation scheme, framed at that time, total area of revenue estate of CIVIL WRIT PETITION NO. 12795 OF 2006 -15- village Lallupura was shown and if the petitioners were aggrieved due to exclusion of any area from the consolidation proceedings, they were supposed to lay challenge to that scheme at the relevant time. After noting facts on record, respondent No. 1 has observed as under: “After hearing both the parties and after going through the records, I came to the conclusion that the area which was found from river Yamuna in the year 1917-18 and which was given to village Lallupura vide order dated 16.6.1918 through Mutation No. 35, that Hasab Surat Jadid be implemented but in that mutation, in column No. 15 dated 16.6.1918 a report was registered that in mutation after dismissal of Deh Haza in Column No. 6 the same was included in village Keharwali, Amritpur Kalan and Amritpur