Ram Phal vs State of Haryana

V.K. Bali, J.—Challenge herein is to orders dated 8.2.1995 Annexure P5 and 6.6.1997 Annexure P7 passed by Consolidation Officer, Karnal and Director Consolidation, Haryana respectively.

The grouse of the petitioners is that the Director Consolidation as also Consolidation Officer have decided to partition the shamlat land in three villages, namely, Kairwali, Amritpur Khurd and Amritpur Kalan, District Karnal vide the impugned orders which is contrary to the provisions of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 as also Punjab Village Common Lands Act, 1961 as also to an earlier order dated 18.8.1970.

Brief facts of the case as projected in the petition reveal that a notification was issued for providing consolidation in the aforesaid three villages on 17.8.1965. A scheme was framed for providing shamlat land as well. On a petition having been file under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter to be referred to as the Act), the Director held that question of title cannot be decided by the consolidation authorities. He further held that no partition can be done unless all the rightholders agreed. He further held that so far as shamlat land was concerned, the same was not open to partition and had to be kept in one Khewat. On 5.2.1996, the Consolidation Officer again made certain proposals which were in accordance with the order dated 18.8.1970. The order aforesaid dated 5.2.1986 was quashed in CWP No. 3143 of 1986. It was observed by the Division Bench deciding the Civil Writ petition aforesaid that the scheme could be framed in accordance with law and WajibulArz. Vide orders dated 8.2.1995 the Consolidation officer instead of amending the earlier scheme and bringing it in accord with the order dated 18.8.1970 framed a new scheme wherein he again provided for partition of shamlat land. Aggrieved, the petition under section 42 of the Act was filed which was dismissed.

The Director Consolidation while passing order Annexure P7 observed that it was clear from the records that consolidation proceedings were started in the aforesaid villages on 17.8.1965 and the scheme was approved on 29.11.1996. As per scheme shamlat land was to be partitioned as per WajibUlArz. This was modified when the scheme was approved. It was provided at Sr. No. 6 of the published scheme that shamlat land in the approved scheme at Sr. No. 6 had been purchased and the vendees had set up tubewell at the site and the total land purchased shall be provided alongwith the tubewell after deduction for common purposes. Some landowners who were aggrieved with the partition proceedings filed an appeal under section 42 which was decided on 18.8.1970 wherein the common petition of shamlat land of three villages was set aside. Some rightholders who were dissatisfied with the order dated 18.8.1970 also filed an appeal under section 42 and submitted that shamlat land should not be partitioned. However, the order dated 18.8.1970 was upheld. Thereafter some rightholders filed CWP 3143 of 1986 which was decided on 19.8.1987 wherein the order earlier upheld was set aside and it was directed that a new scheme of consolidation for the concerned villages be prepared in accordance with law and land be given to the rightholders as per WazibUlArz. The relevant part of WazibUlArz of 190607 as per which now the case was to proceed reads as follows :

"The method of assessment in all the three parties is in equal shares and inside the parties 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 landowners 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."

Consolidation Officer pursuant to directions given by the High Court in the civil writ petition referred to above partitioned the shamlat land and it has been mentioned by the Director Consolidation that consolidation scheme of 5.5.1995 was upheld by this Court in C.W.P. 4938 of 1995. It has further been mentioned in the order passed by the Director Consolidation that authorities had prepared the new scheme in accordance with the directions of this Court dated 10.8.1987 whereby the earlier decision had been set aside. This scheme was published on 8.2.1995 and was approved on 5.5.1995. Against the published scheme some landowners filed a civil writ petition in this Court which was dismissed and the scheme was upheld. It has further been mentioned that in view of the decision of the High Court upholding the consolidation scheme, petition under section 42 was not appropriate.

Without disputing at all the scheme as has been mentioned in the impugned order Annexure P7 passed by the Director Consolidation on 5.5.1995, all that the learned Counsel representing the petitioners could submit before us is that the impugned orders Annexures P5 and P7 were against the order dated 18.8.1970 passed under section 42 of the Act and inasmuch as the order aforesaid had not been challenged at any stage, the impugned orders providing partition of shamlat land in three villages was illegal. We find absolutely no substance in the only contention raised by the learned Counsel representing the petitioners. It is proved from the records of the case that the order aforesaid was challenged at every stage by some of the landowners either by way of petition under section 42 or in writ jurisdiction of this Court under Article 226 of the Constitution of India. In ultimate analysis the High Court gave directions to decide the matter in view of the entries contained in the WajibUlArz and it is pursuant to the directions aforesaid that the impugned order Annexure P5 came to be passed. It cannot, thus, be said that the order dated 18.8.1970 attained finality having not been challenged as the said contention is factually incorrect. Further, the shamlat land has been divided between three different villages by virtue of entries contained in WazibUl Arz. By no means it can be said that the question of title was involved and therefore, the authorities constituted under the Consolidation Act could not deal with such a question.

Finding no merit in this petition, we dismiss the same.