Punjab-Haryana High Court
Balbhadur Singh And Others vs State Of Punjab And Others on 19 March, 2024
Author: Sureshwar Thakur
Bench: Sureshwar Thakur, Lalit Batra
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -1- 2024:PHHC:040486-DB
and other connected cases
In the High Court of Punjab and Haryana at Chandigarh
1. CWP No. 22738 of 2016 (O&M)
Reserved on : 05.3.2024
Date of Decision: 19.3.2024
Balbhadur Singh (deceased) through LRs ......Petitioners
and others
Versus
State of Punjab and others .....Respondents
2. CWP No. 28952 of 2018
Ishwar and others ......Petitioners
Versus
State of Haryana and others .....Respondents
3. CWP No. 15461 of 2023
Kashmir Singh Saini and others ......Petitioners
Versus
State of Haryana and others .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE LALIT BATRA
Argued by: Mr. Anupam Gupta, Senior Advocate with
Mr. Sukhpal Singh, Advocate
for the petitioners (in CWP-22738-2016).
Mr. Saurabh Bajaj, Advocate
for the petitioners (in CWP-28952-2018).
Mr. Vikram Singh, Advocate and
Ms. Sumitra, Advocate
for the petitioner(s) (in CWP-15461-2023).
Mr. Maninder Singh, Sr.DAG, Punjab
(in CWP-22738-2016)
Mr. Ankur Mittal, Addl. A.G., Haryana with
Mr. Pardeep Prakash Chahar, Sr. DAG, Haryana,
Mr. Saurabh Mago, DAG, Haryana,
Ms. Kushaldeep Kaur, Advocate and
Mr. Shivam Garg, Advocate
(in CWP-28952-2018, CWP-15461-2023).
1 of 41
::: Downloaded on - 21-03-2024 01:27:33 :::
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -2- 2024:PHHC:040486-DB
and other connected cases
Mr. Amrik Singh, Advocate
for respondent No. 14 (in CWP-22738-2016).
Mr. Naresh Kaushik, Advocate
for respondent No. 3 (in CWP-28952-2018).
****
SURESHWAR THAKUR, J.
1. Since all the writ petitions (supra) make a common challenge to
the constitutionality of the impugned notification(s), wherebys it omitted
Section 2(g)(i), as earlier thereto became carried in the Punjab Village
Common Lands (Regulation) Act, 1961 (for short 'the Act of 1961'),
therefore, all the writ petitions (supra) are liable for being decided through a
common verdict.
2. In CWP-22738-2016, the petitioners seek the quashing of the
notification dated 23.7.2007 issued by the Government of Punjab, enacting
the East Punjab Holdings (Consolidation and Prevention of Fragmentation)
Act, 2007 (Punjab Act No. 6 of 2007) (for short 'the Act of 2007'), vide
which Section 42-A of the Act has been inserted in the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act, 1948 (for short 'the
Act of 1948'), and also seek the quashing of the notification dated
27.4.1976. The petitioners also seek the quashing of the order dated
28.12.2015 whereby the claim of the petitioners with regard to the makings
of changes in the revenue record regarding their ownership, thus has been
dismissed.
3. In the petition (supra), it is averred that the instant petition
pertains to land measuring 755 kanals 19 marlas situated at village Jodhwal,
Sub Tehsil Shri Machhiwara Sahib, Tehsil Samrala, District Ludhiana. It is
further averred therein that village Jodhwal was set up by a person namely
2 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -3- 2024:PHHC:040486-DB
and other connected cases
Udaisi, in the name of his father Jodh. The said Udaisi was recorded as
owner of land measuring 755 kanals 19 marlas of village Jodhwal, as per
Kursinama of village Jodhwal. The said Kursinama is also known as Wajib-
ul-Arz of the said village. It is futher averred in the petition (supra), that the
said wajib-ul-arz was prepared in the year 1881-82. It is also averred
thereins, that in the column of ownership of jamabandi for the year 1912-13,
there exists an entry of shamlat deh hasab paimana haquiat, and, in the
jamabandis for the year 1916-17 and for the year 1944-45, mutation qua gift
deeds, mortgage and inheritance was incoroporated. It is further averred
thereins, that in the year 1960-61, consolidation of the village Jodhwal took
place and in missal hakiat ownership of 511 share was incorporated in sajra-
nasab of the year 1960-61, and, the ownership of the proprietors of the
village was kept intact. It is further averred therein that after consolidation,
thus the jamabandi was prepared in the year 1961-62, whereins, the revenue
department concerned wrongly incorporated the entries of shamlat deh, thus
in the ownership column thereofs.
4. Since the asked for correction became declined, through the
making of the impugned annexure. Therefore, a challenge is made to the
impugned Annexure P-31 in CWP-22738-2016. On a reading of the
impugned annexure, it appears that the present petitioners had claimed the
benefit of the omitted provision, but since the said claim became founded,
upon the said omission, besides in view of the land being reserved for the
village common purpose. Resultantly, it was held that the challenge to the
entry of mutation No. 991 was both a frail, and, feeble challenge theretos.
5. However, since the remedy for making a challenge to mutation
No. 991, irrespective of a decision becoming made by this Court in
3 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -4- 2024:PHHC:040486-DB
and other connected cases
CWP-18929-2015, rather was through the institution of a declaratory suit
before the jurisdictionally competent statutory authority or before the
jurisdictionally Civil Court concerned. Since in the operative part of the
judgment (supra), this Court has reserved the said liberty, thereby after
upholding the said reserved liberty to the petitioners, the petition is disposed
of.
6. In CWP-15461-2018, the petitioners seek the quashing of the
notification dated 7.12.2020 issued vide Haryana Act No. 30 of 2020 vide
which item (1) of clause (g) of Section 2 of the Act of 1961 has been omitted
vide the impugned amendment Act.
7. In CWP-28952-2018, the petitioners seek the quashing of the
order dated 29.5.2018, whereby the order passed by the Collector concerned,
dated 26.7.2011 was set aside, and, the application of the respondent-Gram
Panchayat concerned, constituted under Section 7(2) of the Act of 1961, thus
became allowed.
8. In the petition (supra), it is averred that the petitioners are the
proprietors of village Mohammad Nagar, Tehsil and District Karnal. The
said village is subjected to the river action of river Yamuna. At the time of
consolidation, the wazib-ul-arz was prepared, whereins, it was specifically
mentioned that there existed no shamlat land in the afore village, and, the
land was being managed by the proprietors, and, that the village is subjected
to the river action, and, therefore the land of the said village always keeps on
increasing. It is further averred thereins, that in the column of ownership of
the jamabandis for the years 1962-63, 1968-69, 1973-74, 1978-79, 1983-84,
1988-89 [Annexure P-2 (Colly)], the proprietors of the village are recorded
as owner in possession of the disputed land, and, in the column of
4 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -5- 2024:PHHC:040486-DB
and other connected cases
cultivation, the petitioners are recorded as gair marusis. Moreover, in the
jamabandi for the year 1962-63, it is recorded that the village (supra) is
subjected to the river action.
9. Since the petitioners are entered in the relevant revenue records,
as gair marusis over the disputed lands, thereby when they have the limited
status (supra) over the disputed land. Resultantly, the petitioners' limited
status over the disputed lands, rather was amenable for becoming curtailed,
through an eviction petition becoming filed against them. Signifiantly also,
when the said revenue entries, as carried in the revenue records remained
unchallenged through adduction of cogent evidence, thereby the said entries
acquire conclusivity. In sequel the orders made on the eviction petition by
the statutory authorities below, are liable to be upheld.
10. Be that as it may, if on account of evident changes in the course
of river Yamuna, which results in alluvion deposits becoming made on the
banks of river Yamuna, therebys if in terms of the apposite savings clauses,
any member of the village proprietary body, is entitled to claim ownership
over the said alluvion deposits, thereby thus it is permissible hence for
reasons assigned hereinafter, rather for such individual proprietors to
institute a declaratory suit before the jurisdictionally competent statutory
forum/jurisdictionally competent Civil Court concerned.
Submissions of the learned counsels for the petitioners
11. The learned counsels appearing for the petitioners at the very
outset submit, that they would be abandoning their challenge to the
constitutionality of the notification, issued by the Government of Punjab
enacting the Act of 2007 vide which Section 42-A has been inserted in the
Act of 1948. The said abandoning of challenge to the above added provision
5 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -6- 2024:PHHC:040486-DB
and other connected cases
in the Act of 1948, is planked on the ground, that the constitutionality of the
said provision has been upheld in a decision made by this Court in CWP No.
15509 of 2009, titled as Mahatam Singh and others versus State of Punjab
and others. However, the learned counsels concerned, consensually submit
that the said provisions have only prospective effect, and, do not have any
retrospective effect.
12. Provisions of Section 42-A of the Act of 1948 are extracted
hereinafter.
"42A. Prohibition to partition the land reserved for common
purposes.- Notwithstanding anything contained in this Act or in
any other law for the time being in force, or in any judgement,
decree, order or decision of any court, or any authority, or any
officer, the land reserved for common purpose whether
specified in the consolidation scheme or not, shall not be
partitioned amongst the proprietors of the village, and it shall
be utilized for common purposes."
13. However, in view of the ad idem submissions made by the
learned counsels for the petitioners, and, by the learned counsels for the
respondents, that the added provision (supra) holds only prospective effect,
and, not retrospective effect, therebys the benefit of the said added
provision, if previously has been assigned to the proprietors concerned,
therebys the said awardings of beneficient grace thereofs, to the proprietors
concerned, would not at all become affected by this Court making a
judgment with respect to the constitutionality of the said added provision.
14. The constitutionality of the notification dated 27.4.1976
(Annexure P-2) (in CWP-22738-2016) is, however, under test, wherebys
through an assented Punjab Act No. 19 of 1976, an amendment was carried
to Section 2(g)(i), whereby the earlier thereins occurring provision,
6 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -7- 2024:PHHC:040486-DB
and other connected cases
provision whereof becomes extracted hereinafter, rather has been deleted.
"becomes or has become shamilat deh due to river action or
has been reserved as shamilat in villages subject to river action
except shamilat deh entered as pasture, pond or playground in
the revenue records."
15. Apparently, a petition under Section 11 of the Act of 1961 is
subjudice before the Collector concerned, and, which has been instituted at
the instance of the petitioners herein, whereins, they claimed the making of a
declaratory decree vis-a-vis the disputed lands. However, since in terms of
the omission (supra), the petitioners become disabled to plank any
submission rested, upon the deleted provision (supra), thereby this Court is
obligated to render a decision in respect of the constitutional validity of the
said deletion.
16. Be that as it may, after making a decision in respect of the
constitutionality of the said deletion, this Court would proceed to relegate
the petitioners in CWP-22738-2016, to pursue their remedies before the
Collector concerned, wherebefore whom their petition under Section 11 of
the Act of 1961 is, thus subjudice. The reason being that the evidence
adducing discharging onus in respect of the benefit, if any, to be derived
from the decision, as made by this Court, wherebys for reasons assigned
hereinafter, it proceeds to reject the constitutionality of the deleted provision
(supra), rather has to be discharged by the apposite petitioners.
17. During the pendency of the instant petitions, this Court had
made a detailed order dated 29.5.2023, as relates to the said deletion. The
relevant paragraphs of the order (supra) are reproduced hereinafter.
"8. He submits that the above deletion or repealing, thus has
infringed the constitutional mandate of reasonableness and
non-arbitrariness. He submits that in the wake of the above,
7 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -8- 2024:PHHC:040486-DB
and other connected cases
only the writ court has the jurisdiction to make an adjudication
upon the constitutionality or the ultra vires or otherwise, of the
Punjab Village Common Lands (Regulation, Amendment) Act,
1976 (hereinafter referred to as the 'Act of 1976'), and, the
learned Collector concerned, who becomes seized with the
above petition, has no jurisdiction to do so.
9. It is but also submitted by the learned counsels appearing
for the respondents, and, with theirs being ad idem with the
learned counsel for the petitioners, that the said omission is
prima facie prospective and is not retrospective. Furthermore
also, though a challenge is made to the vires of Section 42-A of
the East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948. However the challenge to the vires
of the said provision, has been negated, by a decision made by
this Court, on 20.5.2011, in CWP-15509-2007, case titled
Mahatam Singh & ors. Vs State of Punjab & ors.
10. Even otherwise, as declared by this Court, in a decision
rendered on 17.03.2023, in case titled "Subegh Singh V/s State
of Punjab and others", the said amendment has only
prospective effect, and, does not have any retrospective effect.
The impact of the above prima facie, is that, at this stage, if the
consolidation officer and/or the competent revenue officer
concerned, had assigned the petition lands rather through the
above referred to order(s), as made lastly in the year 1965,
thus to the predecessor(s)-in-interest of the petitioners.
Resultantly, the assignment of the disputed lands to the
petitioners, irrespective of petition(s) (supra) being subjudice,
before the statutory authorities below, does prima facie became
clothed with an aura of sanctity. In other words, the investment
of rights in the land owners or in the cultivators, over the
disputed lands, thus prima facie become saved or protected,
rather through the verdict(s) as made lastly in the year 1965
(Annexure P-8), by the learned Financial Commissioner
concerned.
8 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -9- 2024:PHHC:040486-DB
and other connected cases
11. The above prima facie inferences are obviously tentative,
and are, as stated above, meant to maneuver the direction in
which the matter would subsequently travel.
12. There is a reference in Annexure P-31, to the omission
through the amending act, i.e. Act of 1976, being made of
Section 2(g)(1) of the Act of 1961, whereby the prior thereto
orders, as, passed by the authorities (supra), do appear to lose
their legal efficacy, and thereby endanger the rights, title and
interest, if any, of the petitioners over the disputed lands.
13. Even though, through the above amending Act of 1976,
whereby there is an omission of Section 2(g)(1) of the Act of
1961, whereby earlier thus through the previous unrepealed
exclusionary clause, thus the beneficent grace thereof rather
became assigned to the predecessor(s)-in-interest of the
petitioners, thus prima facie occurs, the truncation(s) or
snatching(s) of the rights as bestowed upon the predecessor(s)-
in-interest of the petitioners, through Annexure P-8. Moreover,
since the said assignment of the apposite beneficent grace,
relates to river action, rather saving the disputed lands from
their vestment in the shamlat deh. The above was done in the
face of the situations or locations then, of the disputed lands.
However, the disputed lands, do visibly transit from one
portion of the river banks to the other portion thereof, as they
are subjected to riverian action. Therefore, it is contended
before this Court, by the learned counsels appearing for the
respondents, that the said controversy relating to applicability
of riverian action to the disputed lands, thus became a disputed
question of fact, thereby the said disputed question of fact
rather is unamenable for being adjudicated upon in the instant
writ petition.
14. Be that as it may, the above purported disputed question
of fact does not as such arise. The reason being, that in the
reply to the petition, as becomes furnished by the respondents,
there occurs a speaking therein, that the disputed lands, are as
9 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -10- 2024:PHHC:040486-DB
and other connected cases
such, occurring on the banks of river Sutlej. Resultantly, prima
facie it appears, that the said omitting or repealing amendment,
whereby the said earlier statutory protection assigned to the
petition lands, thus becomes annulled or repealed, and which,
as stated (supra), hence has only prospective effect. Resultantly
also in the wake of transits of disputed lands from one portion
of the river banks, to the other portion thereof, though may
prima facie ultimately threaten the rights, if any, of the
cultivators over such lands, which are subject or amenable to
river action, whereby the situation of the disputed lands shifts,
and/or, the disputed lands are brought from one portion of the
banks of the river Sutlej, to the other portion of the banks of the
river Sutlej. The resultant effect thereof may prima facie, be
that, the situational existence(s) of the disputed lands over
those assigned khasra numbers, as revealed in the order, as
became lastly drawn in the year 1965 whereby then the
disputed lands, became assigned to the predecessor-ininterest
of the petitioners, thus may have undergone a change or the
disputed lands may have transited from the said khasra
numbers to some other khasra numbers, but owing to changes
in the course of the river Sutlej, and/or, on account of alluvion
or diluvion. Therefore, prima facie, if the situational
existence(s) of the disputed lands since 1965, though may have
thus undergone a change, but yet when prima facie the said
change in the situational existence(s) of the disputed lands
since 1965, up to now, thus may be related to riverian action.
Therefore, prima facie, the learned counsels may argue
whether such situational changes, as brought about, through
riverian action, thus yet protects all the rights of the cultivators
whose lands are situated on the banks of river Sutlej, and,
which are subject to alluvion or diluvion, and/or, to such other
riverian action(s), as arises from the change(s) in course(s) of
river Sutlej. Moreover, prima facie, the said riverian action(s)
may when hold the concomitant results (supra), thereupon the
same may also prima facie be acts of vismajor. The resultant
10 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -11- 2024:PHHC:040486-DB
and other connected cases
effects thereof, on the challenged repealing amendment, thus
also may be argued.
15. If so, the learned counsel for the petitioners argues, that
the said situational differences of the disputed lands since
1965, upto now, especially when the disputed lands since then,
uptil now, have shifted from one portion of the banks of the
river Sutlej, to the other portion thereof, thus may not result in
the shifted cultivations of the cultivators, thus being made
amenable to yet become threatened, rather in the light of the
said repealing amendment, whereby the earlier exclusionary
clause, to the definition of shamlat deh, as occurring in Section
2(g)(1) of the Act of 1961, thus becomes abrogated or repealed.
16. Therefore, the learned counsel for the petitioners argues,
that if the said repealing amendment, to the apposite savings
clause, as was prior thereto occurring in Section 2(g) of the Act
of 1961, is held to be intra vires, and, without assignment of
compensation to the petitioners, thereby the constitutional right
of property, as invested in the petitioners, thus would become
untenably snatched or expropriated, and, that too without
payment of compensation to the land owners. Therefore, he
submits, that the said apposite repealing amendment is ultra
vires the constitutional mandate of the right to property and is
required to be struck down. The above argument is permitted to
be further addressed by the learned counsel for the petitioners
on the subsequent date of hearing.
17. Therefore, the matter is kept part heard, and the learned
counsel for the petitioners, and, the learned counsels for the
respondents, are permitted to argue, on the ultra vires or
otherwise of the Amending Act of 1976, whereby the earlier
exclusionary clause to the definition of shamlat deh lands, as
was occurring in Section 2(g)(1) of the Act of 1961, has thus
been repealed."
Submissions of the learned counsels for the petitioners
18. Mr. Anupam Gupta, Senior Advocate has referred to Volume
11 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -12- 2024:PHHC:040486-DB
and other connected cases
III of the Districts and States Gazetteers of the Undivided Punjab. He makes
a pointed reference to the facts as delineated thereins, facts whereof become
extracted hereinafter.
"Ludhiana is the most south-eastern of the five districts of the
Jullundur Division. Its main portion lies between 30° 33' and
31° 1' North Latitude and 75° 25' and 76° 27' East Longitude.
Before the passing of the Riverain Boundaries Act the Sutlej
formed the northern boundary of the District, and roughly
speaking it may still be so considered. There are however
villages to the south of the river which belong to Jullundur, and
others to the north of it belonging to Ludhiana. Between
Ludhiana and Hoshiarpur the river is still the boundary. To the
east the District adjoins Ambala, and to the west Ferozepore,
while it is separated from Delhi and Hissar by the territories of
Patiala, Jind, Nabha, and Maler Kotla which cut into it on the
south; to the north, east and west its boundaries are fairly
symmetrical. The political history of our acquisitions in these
parts accounts for the detached villages stretching as far south
as 30° 5', while two or three groups of Patiala villages lie
within Samrala Tahsil. The compact portion of the District has
a length along the Sutlej of nearly 60 miles; while the breadth,
north and south, is about 24 miles, except where Patiala
territory juts into it between the Ludhiana and Samrala Tahsils.
The District is divided into three Tehsils-Samrala to the
east, Jagraon to the west, and Ludhiana in the middle. Half
way along the northern border of the District and six miles
south of the Sutlej is the town of Ludhiana, the head-quarters of
the administration. Besides lying on the Grand Trunk Road 191
miles from Delhi and 76 from Ferozepore, Ludhiana is an
important junction on the North-Western Railway, from which
the Ludhiana-Dhuri-Jakhal and Ludhiana-Ferozepore
Railways take off. With the exception of those outlying villages
which lie among the Native States to the south, no part of the
District is more than 30 miles from head-quarters. All
12 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -13- 2024:PHHC:040486-DB
and other connected cases
important places are linked up either by rail or metalled roads
so that the communications of the District are the most
complete in the Province.
The outlying or Jangal villages number 39, with an area
of 125 square miles.
The mean elevation of the District is about 800 feet above
sea-level, at Samrala the elevation is 870 feet, at Ludhiana 806
feet and at Jagraon 764 feet. The District has no very striking
natural features. The main physical divisions are a low-lying
alluvial tract along the river (here called Bet) and the uplands
(Dhaia.)
The river Sutlej debouches from the Shvaliks just above
Ropar some 20 miles east of tho boundary of Samrala Tahsil, it
flows due west along the District for some 60 miles, and turns,
as it leaves Jagraon Tahsil, slightly to the north towards its
junction with the Beas. When at its lowest, in the middle of the
cold weather, the river is very shallow and the main stream
seldom exceeds 150 yards in breadth and 3 to 4 feet in depth.
Except during the rainy season it is fordable at almost all
points but when in flood it spreads two or three miles over the
country and even where confined by the Phillaur Bridge Works
to its narrowest, measures nearly a mile of running stream. The
opening of the Sirhind Canal has, of late years, considerably
reduced, except during flood, the volume of water in the river.
The Ferries are noticed in Chapter II (page ).
Like all Punjab rivers the Sutlej constantly shifts its
course during floods. During the last 20 years (1882 to 1903) it
has at several points moved about a mile towards the south of
its former bed in the Ludhiana and Samrala Tahsils, and about
a mile towards the north in the Jagraon Tahsil, near Talwara.
According to local tradition it flowed about 120 years ago just
under the ridge which separates the Dhaia from the Bet, The
old towns and villages of Bahlolpur, Machhiwara, Kum, &c.,
were built on its banks. The division between uplands and
13 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -14- 2024:PHHC:040486-DB
and other connected cases
lowlands is everywhere distinctly marked by the ridge or high
bank (dha), between which and the present bed of the river lies
the Bet. To the east of the District the river and the high bank
are five or six miles apart, and this is the width of the Bet for
the first 30 miles, but below the town of Ludhiana it gradually
narrows until in Jagraon Tahsil it is only one or two miles in
width and finally disappears.
Immediately under the high bank along the old course of
the Sutlej now runs a perennial stream called the Budha Nala
which takes its rise near Chamkaur, in the Rupar Tahsil of
Ambala, and enters this District under Bahlolpur. Passing just
below the town of Ludhiana it flows into the Sutlej in Tahsil
Jagraon, a few miles east of the Ferozepur border. When
swollen by floods in the rains it has a considerable volume of
water and covers the surrounding country but ordinarily,
although there is in places a good deal of swamp, the stream is
only a few yards across. The water, except during floods, is
perfectly clear and is used freely for drinking purposes. It is
rarely, if ever, used for irrigation. In explanation of this fact it
is reported to contain a strong infusion of salts, but the main
reason is that it is easier and more economical to dig small
unlined wells, in which water is obtained at from 2 to 10 feet
below the surface."
19. The learned senior counsel submits, that therebys but evidently
with river Satluj suddenly diversifying its course during floods. Therefore,
he submits, that the said change of course by river Satluj, results in the lands
of private proprietors occurring on the banks thereof, thus becoming heaped
with deposits. Resultantly, he argues, that to such deposits, the land owners
concerned become invested with a right to claim title theretos, as the land
owners concerned, may enjoy ownership rights thereovers rather in terms of
the various saving clauses to the definition of shamlat deh. The said savings
clause thus to the definition of shamlat deh are embodied in Section 2(g)(ii)
14 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -15- 2024:PHHC:040486-DB
and other connected cases
to (ix), saving clauses whereof are reproduced hereinafter.
"(ii) has been allotted on quasi permanent basis to displaced
persons.
[ii-a) was shamilat deh, but, has been allooted on quasi
permanent basis to a displaced person, or, has been otherwise
transferred to any person by sale or by any other manner
whatsoever after the commencement of this Act, but on or
before the 9th July, 1985]
(iii) has been partitioned and brought under cultivation by
individual landholders before the 26th January,1950.
(iv) having been acquired before the 26th January, 1950, by a
person by purchase or in exchange for proprietary land from a
co sharer in the shamilat deh and is so recorded in the
jamabandi or is supported by a valid deed.;1 [and is not in
excess of the share of the co sharer in the shamilat deh.
(v) is described in the revenue records as Shamilat, Taraf, Patti
Panna an Thola and not used; according to revenue records for
the benefit to the village community or a part thereof or for
common purposes of the village.
(vi) lies outside the abadi deh and was being used as gitwar,
bara manure pit, house or for cottage industry, immediately
before the commencement of this Act].
(vii) [.........]
(viii) was Shamilat deh, was assessed to land revenue and has
been in the individual cultivating possession of co-shares not
being in excess of their respective shares in such shamilat deh
on or before the 26th January, 1950, or
(ix) was being used as a place of worship or for purposes,
subservient thereto, immediately before the commencement of
this Act."
20. Furthermore, he submits that when the said saving clauses to
the definition of shamlat deh are to be integrated, besides are to be read in
alignment with the said river actions whereby alluvion deposits become
made onto the lands of the land owners concerned, thus through river
15 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -16- 2024:PHHC:040486-DB
and other connected cases
actions. Moreover, when such lands adjunct to the rivers concerned, are
protected from vestment in the shamlat deh, rather on the premise of theirs
becoming provenly covered by the relevant savings clauses, thus to the
definition of shamlat deh. Therefore, the learned senior counsel submits,
that in the face of the said relevant omission, as caused by the relevant
Amending Acts, there would be a complete ill obviable redundancy to the
said saving clauses to the definition of shamlat deh. As a corollary, he
submits, that to save the relevant saving clauses from becoming unworkable
or being rendered otiose or redundant, therebys the apposite omission, as
made by the apposite Amending Acts, thus naturally is to acquire the vice of
unconstitutionality. Furthermore, he submits, that when the said omission is
expropriatory, and, that too obviously without determination of
compensation vis-a-vis the riparian land owners concerned, who may
become entitled to receive the beneficient grace of the savings clauses to the
definition of shamlat deh, thus on alluvion deposits being made on such
saved lands, rather from the definition of shamlat deh. Resultantly, the
learned senior counsel argues, that thereby the said omission has blatantly
caused breach to the mandate of Article 300-A of the Constitution of India.
21. The learned senior counsel proceeds to submit, that since the
river Satluj, and/or other rivers thus during theirs flowing, but make changes
in their respective courses, thereby when such changes, swamp, inundate,
submerge, and, make untillable such lands, which are adjunct to or adjacent
to their respective river banks. However, yet on such earlier submerged
lands in the rivers concerned, rather becoming relieved or eased from
submergence, thus on happening of subsequent changes in the course of
river Satluj, as such, when thereby such lands become exposed to the skies.
16 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -17- 2024:PHHC:040486-DB
and other connected cases
In sequel, when earlier to such exposure to the skies, the said lands may be
amenable to become endowed the benefit of the apposite savings clause,
and/or may be well amenable to become assigned to the land owners
concerned. Therefore, reiteratedly the ill effect of the said omission is that,
such rights becoming completely snatched or expropriated. Moreover, he
submits, that when on changes in the courses of the rivers concerned, thus
taking place, and, resultantly, the earlier submerged lands in the rivers
concerned, thus becoming exposed to skies, if were amenable to be receiving
the beneficient grace of the apposite savings clauses to the definition of
shamlat deh lands. Consequently, he argues that the said deletion has rather
expropriated the well application of the relevant savings clauses to the
definition of shamlat deh lands.
22. The learned senior counsel has referred to Volume 100 of
Halsbury's Laws of England, whereins, occurs respectively the definitions of
accretion, alluvion and dereliction, besides the effect of accretion, alluvion
and dereliction, and, the basis of the doctrine of accretion as well as the
extent of the doctrine of accretion. The said definitions are extracted
hereinafter.
39. Meanings of 'accretion', alluvion' and 'dereliction'. The
doctrine which is conveniently called 'the doctrine of
accretion' recognises the fact that where land is bounded by
water, the forces of nature are likely to cause changes in the
boundary between the land and the water.
'Accretion' means the gradual and imperceptible receding of
the sea or inland water, and alluvion means the gradual and
imperceptible deposit of matter on the foreshore. Both lead to
an addition to the land or foreshore.
'Dereliction' means the gradual and imperceptible
encroachment of water onto land causing a reduction in the
17 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -18- 2024:PHHC:040486-DB
and other connected cases
surface area of the foreshore.
40. Effect of accretion, alluvion and dereliction. The
presumption of law is that where land or foreshore is subject to
accretion or alluvion and the added land is above high-water
mark, the addition belongs to the owner of the dry land to
which it is added, and if the added land is above the low-water
mark it belongs to the owner of the foreshore. Evidence can be
adduced to rebut this presumption, but that evidence must be
strong.
Where the opposite process, dereliction, takes place and the
tidal water gradually and imperceptibly³ encroaches upon land
which was formerly situated above high-water mark, that land
becomes the property of the owner of the foreshore and the
ownership of land which was formerly part of the foreshore
passes to the owner of the bed of the tidal water".
41. Basis of the doctrine of accretion. The old basis of the
doctrine of accretion was thought to be that from day to day,
week to week and month to month a person cannot see where
his old boundary was¹, and that that which cannot be perceived
in its progress is taken to be as if it had never existed. A more
realistic view is that the doctrine is required for the protection
of property and recognises the fact that a riparian owner may
lose as well as gain from changes in the water boundary or
level; but whatever is the true explanation of the doctrine, what
is certain is that it requires a distinction to be made between
such progression as may justly be considered to belong to the
riparian owner and such large changes or avulsions as should
more properly be allocated to his neighbour.
42. Sudden changes. Where the change of boundary between
the land and the water is not slow and imperceptible but
sudden or as a result of deliberate artificial reclamation, the
presumptions as to ownership" do not apply and the change
causes no change in the ownership of the land.
43. Extent of the doctrine of accretion. The doctrine of
18 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -19- 2024:PHHC:040486-DB
and other connected cases
accretion applies equally to the property of the Crown or a
subject, It applies whether the change is caused by natural
means or artificial means lawfully employed, provided the
change is not the direct result of deliberate reclamation. So
long as the change is gradual and imperceptible", the doctrine
applies, even though the former boundaries of the land
concerned were defined or ascertainable."
23. He has also referred to the effect of riparian grant, as has been
defined thereins, definition whereof becomes extracted hereinafter.
"78. Effect of riparian grant. A conveyance, transfer or lease
of land described abutting on or bounded by a river and made
by a person who himself has the soil as far as the centre line of
the stream is presumed to include half the bed of the river even
though it is not expressly referred to as part of the land
conveyed or demised. The presumption applies:
(1) even though the grant is by plan and quantity and the
grantor is owner of the whole of the river bed;
(2) where specific or scheduled measurements, or
delineations or colouring on a plan attached to the
conveyance or lease, do not include any part of the river";
(3) where the river is very wide³;
(4) where the land is conveyed by Act of Parliament; and
(5) (formerly) to the grant of a manor on its
subinfeudation".
However, the presumption does not apply in the case of an
award under an Inclosure Act, and it may be rebutted by
showing:
(a) that a private or several fishery not belonging to the
grantor exists over the half of the river bed in question;
(b) that at the time of the grant of the riparian land there
was no intention on the grantor's part to part with the bed
19 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -20- 2024:PHHC:040486-DB
and other connected cases
as far as the centre line"; or
c) that the grantor did not own the bed of the river"
24. The learned senior counsel has also referred to American
Jurisprudence Second Edition Volume 78, whereins, there are elucidations
with respect to the title and rights in general; effect upon boundaries. The
said elucidations are extracted hereinafter.
"411. Generally.
It is the general rule that where the location of the margin or
bed of a stream or other body of water which constitutes the
boundary of a tract of and is gradually and imperceptibly
changed or shifted by accretion, reliction, or erosion, the
margin or bed of the stream or body, as so changed, remains
the boundary line of the tract, which is extended or restricted
accordingly. The owner of riparian, land thus acquires title to
all additions thereto or extensions thereof by such means and in
such manner, and loses title to such portions as are so worn or
washed away or encroached upon by the water, in the absence
of any provision or agreement to the contrary. The law
respecting the acquisition of title by accretion is independent of
the law respecting the title to the soil under water." But where
the change takes place suddenly and perceptibly either by
reliction" or avulsion, as where a stream from any cause
suddenly abandons its old and seeks a new bed, such a change
works no change of boundary or ownership. 40 Title to land is
not lost even temporarily by avulsion.
In most jurisdictions, the character of the stream or body
of water as tidal nontidal, navigable or nonnavigable of the is
immaterial as respects the application foregoing rules relating
to accretion, reliction, erosion, and avulsion. As elsewhere
observed, however, in some civil-law jurisdictions the
application of such rules is limited to streams."
The law of accretion and reliction applies both to waters
20 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -21- 2024:PHHC:040486-DB
and other connected cases
in which the title to the bed is in the state and to those where
the riparian owner's title extends to the thread of the stream. It
also applies alike to streams that do and to those that do not
overflow their banks, and where dikes and other defenses are
or are not necessary to keep the water within proper limits.
One who has acquired title to land by adverse possession is
entitled to any accretions thereto, regardless of the time of their
formation.
Changes in streams or bodies of water constituting the
boundary between states or nations by deliction, reliction,
erosion, or avulsion as affecting such boundaries, are
discussed under other titles. The division or apportionment as
between adjoining proprietors, of land formed by accretion in
front of their tracts is discussed in subsequent sections of this
subdivision."
25. The learned senior counsel has relied upon a judgment rendered
by the Privy Council in case titled as Raja Srinath Roy and others versus
Dinabandhu Sen and others reported in AIR 1914 Privy Council. The
relevant paragraphs of the judgment (supra) are extracted hereinafter.
"The streams in the Gangetic delta are capricious and powerful. In
the course of ages the land itself has been deposited by the river,
watch always carries a prodigious quantity of mud in suspension.
The river comes down in flood with resistless force, and throughout
its various branches is constantly eroding its banks and building
them up again. It crawls or races through a shifting network of
streams. Sometimes its course changes by imperceptible degrees;
sometimes a broad channel will shift, or a new one open in a single
night. Slowly or fast it raises islands of a substantial height standing
above high water level and many square miles in extent. Lands so
thrown up are called "churs," and it is by chur-lands formed at some
unknown though probably not remote date that the northern and
southern channels in question are at present divided.
x x x x x
It was admitted that the common law of England as such does
not apply in the mofussil of Bengal, but the argument was that
21 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -22- 2024:PHHC:040486-DB
and other connected cases
principles established under and for English conditions afford a
sound guide to the rules which should be enforced in India. Their
Lordships have given these arguments careful consideration, though
they would in any case be slow to disturb decisions by which rules
have been established for Bengal governing extensive and important
rights such as rights of julkar, and unless they could be shown to be
manifestly unjust or flagrantly inexpedient, their Lordships would
not supersede them. The Indian Courts have in many respects
followed the English law of waters. Sometimes their rules are the
same; sometimes only similar.
x x x x x
The question how far a rule established in this country can be
usefully applied in another, whose circumstances, historical,
geographical, and social, are widely different, is well illustrated by
the case of navigability as understood in the law of the different
States of the United States of America.
x x x x x
The Courts of the different States, minded alike to follow the
common law Where they could, found themselves in the latter part of
the eighteenth and the early part of the nineteenth centuries
constrained by physical and geographical conditions to treat it
differently.
x x x x x
It was urged that the established rule with regard to alluvion
should be applied to rights of julkar; that since the right to
accretions and the liability to derelictions of soil attached only to
gradual accretions or to erosions taking place by imperceptible
degrees, so too the right of the owner of the fishery to "follow the
river" ought to be limited to cases where the river's encroachments
were gradual, and ought not to be extended to an irruption as
sudden, and accomplished as rapidly as was the formation of the
channel in question in the defendants lands. It is to be observed that
here too Indian law, doubtless guided by local physical conditions,
has adopted a rule varying somewhat from the rule established in
this country. Where under English conditions the rule applies to "
imperceptible" alterations, Regulation XI of 1825, Articles 1 and 4,
speak of "gradual accession." The analogy of the English rule can
22 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -23- 2024:PHHC:040486-DB
and other connected cases
hardly be prayed in aid when Indian legislation has thus an
established and different rule on the same subject. Further, as the
Indian rule is established now beyond question, it may perhaps be
said without offence of the Indian as of the English rule, that it
represents rather a compromise of convenience than an ideal of
justice, for that which is a man's own does not become another's any
more agreeably to ideal justice by being filched from him gradually
instead of being swallowed whole. In any case the analogy is not in
pari materia. Property in the soil is one thing; enjoyment of a profit
a prendre in flowing water may in some respects be another. True,
the profit a prendre is to be enjoyed in alieno solo; such is its
nature. True too that at the time of the grant, the grantor has no
power to create this incorporeal hereditament where his ownership
of the soil does not extend; but when the power to grant arises from
sovereignty, and has never been decided to be limited to the bounds
of the grantor's proprietorship as it may continue to exist from time
to time, the mere fact that the julkar right is classified in the
language of the English law of real property as a profit a prendre in
alieno solo does not prevent its proprietor from being entitled to
follow the river in its natural change. The fish follow the river and
the fisherman follows the fish; this may be right or wrong, but the
question is not settled by asking under what circumstances of
natural physical change the proprietor of an acre of dry land, which
has vanished from sight, can claim to have still vested in him an
equal area of river bed on the same site, or another acre of dry land
transferred by the river and attached by accretions to another
proprietor's land.
Lastly, it is said to be unjust that a land-owner should not
only lose the use of his land when the river overflows it, but also the
right to fish over his own acres and in his own waters, in order that
another may unmeritoriously fish in his place. There is some
begging of the question here; the waters are not his waters, nor is
the change confined to the flooding of his fields. It is the river that
has made his land is own; the water are the tidal navigable waters
the great stream. In physical fact the landowner enjoys his land by
the precarious grace of the river, whose identity is so persistent, and
whose character is so predominating, as almost to amount to
personality; and is it fundamentally unjust that in law too he should
23 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -24- 2024:PHHC:040486-DB
and other connected cases
lose what he has lost in fact, and be precluded from taking in
substitution for his lost land an incorporeal right which has been
granted not to him but to another? The sovereign power lawfully
invests its grantee with julkar rights in part of the river; is it unjust
that when that river shifts its course, changing in locality but not in
function, the owner of those rights should still enjoy them in that
self-same river, instead of being despoiled of them by the course of
nature, which he could neither foresee nor control? There must be
some rule and there must be some hardship. To say the least there is
no such proof that one rule is better than the other as would even
approach the conclusion that the rule established should now be set
aside.
Their Lordships are of opinion that no reason sufficiently
Cogent has been found to warrant them in disregarding the settled
Indian authorities, and being further of opinion that the plaintiffs
established their claim at the trial, they will humbly advise His
Majesty that the appeal should be allowed with costs here and
below, and that the judgment appealed from should be set aside and
the judgment of the Trial Judge restored."
26. Therefore, the learned senior counsel submits, that the Indian
rivers have a propensity either to make sudden changes or to make
perceptible changes, but he submits, that the land owned by the private
owners lying along the banks of the rivers, irrespective of whether the said
lands are inundated or upon change of course of rivers, thus taking place
they become exposed to the skies yet the private ownership over such
respective submerged lands or to those lands, as become exposed to skies,
but cannot become snatched, as has been done through the omission (supra).
27. The learned senior counsel has referred to the judgment titled as
Secretary of State versus Raja of Vizianagaram and another, reported in
AIR 1922 Privy Council 105. The relevant paragraphs of the judgment
24 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -25- 2024:PHHC:040486-DB
and other connected cases
(supra) are extracted hereinafter.
"x x x x x
In dealing with the great rivers in India and comparing
them with the rivers in this country, it is necessary to bear in
mind the comparative rapidity with which formations and
additions take place in the former.
x x x x x
In other words, the actual rate of progress necessary to
satisfy the rule when used in connection with English rivers is
not necessarily the same when applied to the rivers of India.
The application of the rule is, in their Lordships' opinion,
correctly laid down in the judgment of Mr. Justice Ayling in the
present case when he says :-
"It seems to me the recognition of title by alluvial
accretion is largely governed by the fact that the latter is
due to the normal action of physical forces; and the
different conditions of Indian and English rivers is such
that what would be abnormal and almost miraculous in
the latter is normal and commonplace in the former, as
pointed out by their Lordships of the Privy Council in
Srinath Roy v. Dinabandhu Sen (3)."
28. The learned senior counsel has also referred to the judgment
titled as Secy of State versus Foucar and Co. Ltd., reported in AIR 1934
Privy Council 17. The relevant paragraphs of the judgment (supra) are
extracted hereinafter.
"x x x x x
The principle that gradual accretion enures to the land which
attracts it is one that has been recognised from very early
times. Thus Lord Stair, writing in 1681, says :
"Appropriation by alluvion is admitted in all nations, for
thereby the abjection of another's ground insensibly and
imperceivably, by the running of a river, becomes a part
of the ground to which it is adjected; because it is
uncertain from whose ground such small and
imperceivable particles are carried by the water, and
thereby also the frequent questions that would arise
between the proprietors upon the opposite banks of
rivers are prevented; and though the abjection may be
perceivable and considerable in a tract of time it market
no difference if at no particular instant the abjection be
considerable; as the motion of the palm of a horologe is
insensible at any instant, though it be very perceivable
when put together in less than a quarter of an hour."
('Stairs' Institutes of the law of Scotland," II, 1, 35.)
The basis of the rule has been differently stated at
25 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -26- 2024:PHHC:040486-DB
and other connected cases
different times, but their Lordships think it must be regarded as
a rule of "general convenience and security," (per Shaw in A.G.
of S. Nigeria v. John Holt and Co. (1915) AC 599=84 LJ PC
90=112 LT 955 at 612) and as necessary for the "mutual
adjustment and protection of property" (per Lord Abinger in
Hull and Selby Railway Co. (2) at 832). In India the doctrine
has been embodied in the law of Bengal by Regn. 11 of 1825,
and of Oudh by Act 18 of 1876, and it is equally well
established in Madras, where there is no statutory enactment
on the subject (per Lord Hobhouse, Shri Balsu
Ramalaksmamma v. Collector of Godaveri (3). In Bombay the
right is recognised, but is restricted by the Land Revenue Code
of 1879, Section 4, to accretions not exceeding an acre in
extent.
Under these circumstances it would, their Lordships
think, be difficult to hold, as the appellant contends, that the
doctrine is wholly inapplicable to Burma, where under Act 13
of 1898 the ultimate test is to be "justice, equity and good
conscience"
x x x x x
The chance was inherent in the grant. The river gives, just as it
may take away, and if the gift is gradual, little by little, from
day to day, or from week to week, the law for the reasons
explained above, deems what is added to have been part of
what was granted : in the words of Baron Alderson (Hull and
Selby Railway's case "that which cannot be perceived in its
progress is taken to be as if it never had existed at all'."
It would, in their Lordships' opinion, require much more
precise words than those appearing in the section above quoted
to exclude the application of a doctrine so well established and
founded upon such broad considerations.
x x x x x
For the reasons given their Lordships think that the decree
passed by the High Court, against which this appeal has been
brought, was right, that the appeal fails, and that it should be
dismissed with costs, and they will humbly advise His Majesty
accordingly."
29. The learned senior counsel has further referred to the judgment
titled as Southern Centre of Theosopy Inc vs. State of South Australia,
reported in [1982] 1 AII ER. The relevant paragraph of the judgment
(supra) is extracted hereinafter.
"Before examining the authorities, which are copious and in
their result clear, their Lordships find it advisable to consider
briefly the nature of the doctrine of accretion. This is a doctrine
which gives recognition to the fact that where land is bounded
26 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -27- 2024:PHHC:040486-DB
and other connected cases
by water, the forces of nature are likely to cause changes in the
boundary between the land and the water. Where these changes
are gradual and imperceptible (a phrase considered further
below), the law considers the title to the land as applicable to
the land as it may be so changed from time to time. This may be
said I to be based on grounds of convenience g and fairness.
Except in cases where a substantial and recognisable change in
boundary has suddenly taken place (to which the doctrine of
accretion does not apply), it is manifestly convenient to
continue to regard the boundary between land and water as
being where it is from day to day or year to year. To do so is
also fair. If part of an owner's land is taken from him by
erosion, or diluvion (ie advance of the water) it would be most
inconvenient to regard the boundary as extending into the
water; the landowner his treated as losing a portion of his land.
So, if an addition is made to the land from what was previously
water, it is only fair that the landowner's title should extend to
it. The doctrine of accretion, in other words, is one which
arises from the nature of land ownership from, in fact, the long-
term ownership of property inherently subject to gradual
processes of change. When land is conveyed, it is conveyed
subject to and with the benefit of such subtractions and
additions (within the limits of the doctrine) as may be take
place over the years. It may of course be excluded in any
particular case, if such is the intention of the parties. But if a
rule so firmly founded in justice and convenience is to be
excluded, it is to be expected that the intention to do so should
be plainly shown. The authorities have given recognition to this
principle. They have firmly laid down that where land is
granted with a water boundary, the title of the grantee extends
to that land as added to or detracted from by accretion, or
diluvion, and that this is so whether or not the grant is
accompanied by a map showing the boundary, or contains a
parcels clause starting the area of the land, and whether or not
the original boundary can be identified."
27 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -28- 2024:PHHC:040486-DB
and other connected cases
30. The learned senior counsel has also referred to a judgment titled
as William E. Banks versus William B. Ogden, reported in (1865) 69 US
57=17L Ed 818. The relevant paragraph of the judgment (supra) is extracted
hereinafter.
"The rule governing additions made to land, bounded by a
river, lake or sea, has been much at the discussed and variously
settled by usage and by and if positive law. Almost all jurists
and legislators, however, both ancient and modern, have
agreed that the owner of the land thus bounded, is entitled to
these additions. By some, the rule has been vindicated on the
principle of natural justice, that he who sustains the burden of
losses and of repairs, imposed by the contiguity of waters,
ought to receive whatever benefits they may bring by accretion;
by others, it is derived from the principle of public policy, that
it is the interest of the community that all land should have an
owner, and most convenient, that insensible additions to the
shore should follow the title to the shore itself."
31. The learned senior counsel has also referred to a judgment titled
as Bonelli Cattle Company versus State of Arizona, reported in 414 US 313
= 38 L Ed 2d 526. The relevant paragraphs of the judgment (supra) are
extracted hereinafter.
"Federal law recognizes the doctrine of accretion whereby the
"grantee of land bounded by a body of navigable water
acquires a right to any gradual accretion formed along the
shore." Hughes v Washington, 389 US 290, 293, 19 L Ed 2d
530, 88 S Ct 438 (1967); accord, Jones v Johnston, 18 How
150, 156, 15 L Ed 320 (1856). When there is a gradual and
imperceptible accumulation of land on a navigable river bank,
by way of alluvion or reliction, the riparian owner is the
beneficiary of title to the surfaced land:
"It is the established rule that a riparian proprietor of land
bounded by a stream, the banks of which are changed by the
28 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -29- 2024:PHHC:040486-DB
and other connected cases
gradual and imperceptible process of accretion or erosion,
continues to hold to the stream as his boundary; if his land
is increased he is not accountable for the gain, and if it is
diminished he has no recourse for the loss" Philadelphia
Co. v Stimson, 223 US 605, 624, 56 L Ed 570, S Ct 340
(1912)."
32. The learned senior counsel has also made a reference to a
judgment passed by this Court in CWP No. 15509 of 2009, titled as
Mahatam Singh and others versus State of Punjab and others. The
relevant paragraph of the judgment (supra) is extracted hereinafter.
"Section 42-A, as introduced by the Consolidation Act, 2007,
does not indicate any of these purposes. The preamble of the
Act or the reasons or objects for bringing about the amendment
are not relevant and are not to be referred to if the language of
the Statute is clear and unambiguous. The literal interpretation
should be the preferential mode for understanding the scope,
applicability, purpose and effect of the Statute. Reference to
supportive and explanatory text which is not part of the
provisions of the Statute should not be resorted to."
33. The learned senior counsel has further relied upon a judgment
rendered by the Hon'ble Apex Court in case titled as Bhagat Ram and
others versus State of Punjab and others reported in (1967)2 SCR 165.
The relevant paragraphs of the judgment (supra) are extracted hereinafter.
"Therefore, the income can only be used for the benefit of the
village community. But so is any other income of the Panchayat
of a village to be used. The income is the income of the
Panchayat and it would defeat the whole object of the second
proviso if we were to give any other construction. The
Consolidation Officer could easily defeat the object of the
second proviso to art. 31A by reserving for the income of the
Panchayat a major portion of the land belonging to a person
holding land within the ceiling limit. Therefore, in our opinion,
the reservation of 100 kanals 2 marlas for the income of the
Panchayat in the scheme is contrary to the second proviso and
the scheme must be modified by the competent authority
29 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -30- 2024:PHHC:040486-DB
and other connected cases
accordingly.
x x x x x
In the result we hold that the scheme is hit by the second
proviso to art. 31 A in so far as it reserves 100 kanals 2 marlas
for the income of the Panchayat. We direct the State to modify
the scheme to bring it into accord with the second proviso as
interpreted by us, proceed according to law. There would be an
order as to costs."
Submissions on behalf of the learned counsel appearing for the State of
Punjab, and, for the State of Haryana
34. In CWP-28952-2018, the learned State counsels submit, that the
instant petition has been filed by the petitioners by concealing the material
facts. He further submits that the petitioners have miserably failed to
produce on record any documentary evidence to prove that they have
remained in cultivating possession of the disputed land prior to 26.1.1950.
The learned counsels further submit, that vide notification dated 26.10.2004,
issued by the Govt. of Haryana, village Mohammadnagar has already been
declared a part of Gram Panchayat Nasirpur, and, due to illegal possession
of the petitioners, the Gram Panchayat concerned is facing huge financial
loss from earlier time.
35. The learned State counsels submits, that the provisions of sub-
Section (2) of Section 1 of the Punjab Village Common Lands (Regulation)
Act, 1953, are not applicable to the lands which become shamlat due to river
action. They further submit, that the lands which had become shamlat deh
due to river action after the commencement of Shamlat Law or will become
shamlat deh due to river action after the commencement of the Act of 1961,
shall not be within the ambit of shamlat deh.
36. The learned State counsels further submit, that it is settled law
30 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -31- 2024:PHHC:040486-DB
and other connected cases
that the relevant date for determination of the character of the land with
reference to section 2(g) is the 9th January, 1954, and, that the revenue
entries in Jamabandi prior to 09.01.1954 is a relevant fact for the purpose of
section 2(g) of the Act read with provisions of the Punjab Village Common
Lands (Regulation) Act 1953. In the present case the land in question is
recorded as Shamilat Deh Hasab Rasad Rakba Khewat as per mutation . In
terms of section 2(g)(i) of the Act of 1961 Act, Shamilat deh includes land
which is described in the revenue record, as Shamilat deh. He further
submits, that the disputed land would be used for all the common purposes
of the village and no person from the village can claim the right of
ownership over the same. The learned counsels further submit, that no
revenue record has been brought on record by the petitioners which can
prove that the proprietary land of the petitioners has become shamlat deh
due to river action.
Analysis of the submissions addressed before this Court by the learned
senior counsel, and, by the learned State counsels respectively
appearing for the State of Punjab, and, for the State of Haryana, and,
the reasons for accepting the submissions of the learned senior counsels
for the petitioners, and, for rejecting the submissions of the learned
State counsels concerned, and, thereby this Court declaring the relevant
omission to be ultra vires Article 31-A of the Constitution.
37. Initially, this Court is bound to re-extract the relevant deleted
provision, provision whereof becomes extracted hereinafter.
"becomes or has become shamilat deh due to river action or
has been reserved as shamilat in villages subject to river action
except shamilat deh entered as pasture, pond or playground in
the revenue records."
38. The statutory coinages (supra) which are carried thereins do
candidly spell the pointed factum, that the lands subjected to river action,
31 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -32- 2024:PHHC:040486-DB
and other connected cases
and, thereby theirs becoming shamlat deh, excepting the lands entered, as
pasture, pond or playground in the revenue records, thus therebys becoming
protected from vestment in the shamlat deh, and/or thereby the lands
covered within the said statutory coinage, are deemed to not vest in the
shamlat deh, and, are rather deemed to vest a leverage in the individual
proprietors to well stake ownership rights thereovers.
39. The coinage which exists thereins, and, which requires an
earmarked focus, is "lands reserved as shamlat deh lands" in those villages
which become subjected to river action. The meaning of the said coinage is
that the said reservations are to be made through employment of the relevant
provision, as engrafted in the Act of 1948. Therefore, if on account of pro
rata cuts being made, upon the legitimate holdings of the estate holders
concerned, thus therebys lands are reserved as shamlat lands for the benefit
of the village proprietary body. Furthermore, if therebys but in accordance
with law, there is a right invested in such estate holders to seek re-partition,
and, re-distribution thereofs to them. Moreover, in case such reserved lands
for the benefit of the village proprietary body, thus are situated in those
mohals or villages which are subjected to river action, wherebys the lands
earlier reserved in manner (supra) for the benefit of the village proprietary
body do not become amenable, for theirs in terms of the sharat wazib ul arz,
thus becoming so utilizable. Resultantly when therebys the estate holders
concerned, from whose legitimate holdings pro rata cuts are made for
creating such reservations, rather on account of the apposite provisions
existing in the Act of 1948, but were entitled to seek re-distribution, and, re-
partition thereofs to them. However, when on account of the said provision
becoming deleted, they become forestalled to seek re-distribution or re-
32 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -33- 2024:PHHC:040486-DB
and other connected cases
partition to them of such lands affected by river action. Resultantly,
therebys there is an untenable snatching, and, expropriation of such rights of
re-distributing, and, re-partitioning to such estate holders, and, that too
without assessment of compensation to them. In sequel, in the above
situation, the omitted provision is blatantly expropriatory, and, militates
against the statutory rights of re-partition, and, re-distribution, thus invested
in the estate holders, besides is militative of the constitutional right, as
enshrined in Article 300-A of the Constitution of India.
40. Moreover, the said omitted provision also accepted, and,
recognized that if on account of river action, the lands become shamlat deh,
thus qua the thereovers made alluvion deposits but subject to the individual
proprietor, evidently proving, that they had lands adjunct to the rivers
concerned, and, also evidently proving that the said lands but were earlier
ably covered within the ambit of the relevant savings clauses, rather the
individual proprietor concerned, but becomes entitled to claim ownership
rights. However, again subject to the rider that the assertion so made by the
individual proprietor concerned, became ably rested upon his owning lands
on the banks of the river concerned. In other words, if the said alluvion
deposits, were proved in tandem with the relevant savings clauses, thereby
irrespective of a revenue entry in the column of ownership in the relevant
revenue records, detailing the owner to be shamlat deh hasab rasad khewat,
yet proof of individual cultivating possession in terms of the relevant
savings clauses, rather not making such shamlat lands to vest in the
panchayat deh or in the shamlat deh. Furthermore, the reservations of lands,
as shamlat deh, in villages subjected to river action, excepting the lands
entered in the revenue records, as pastures, ponds or playgrounds, but cannot
33 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -34- 2024:PHHC:040486-DB
and other connected cases
be said to be such rigid reservations, wherebys there is no leverage to the
individual proprietors concerned to establish qua such reservations of
shamlat lands in villages subjected to river action, but becoming be eased or
relaxed, rather on dependence being made on the pre consolidation records
or dependence being made, on any of the provisions of the savings clauses,
to the definition of shamlat deh. Moreover, the re-partitioning, and, re-
distribution under the relevant statutory provisions can also be claimed over
such shamlat dands, which become affected by rivarian actions, as therebys
they do become unutilizable for the village common purposes, and/or are
rather through strenuous efforts or exacting labour, thus required to become
re-put to cultivation.
41. Therefore, it appears that the impugned deletion has scuttled,
and, pre-empted the individual proprietor concerned, to make any
dependence on any of the savings clauses to the definition of shamlat deh.
Moreover, the said omission has also completely precluded the individual
cultivators concerned, to in respect of the alluvion deposits, seek a claim yet
planked, upon the relevant savings clause, to the definition of shamlat deh.
In sequel, the snatching of the said right from the individual cultivators
concerned, who own lands abutting the rivers concerned, rather is grossly
expropriatory, thereby the said omission is militative against Article 300-A
of the Constitution of India.
42. The learned senior counsel has also not ideally made a reference
to the erudite texts on the subjects, rather the allusions theretos, do well
illumine the subject under consideration.
43. Succinctly put, the erudite texts pointedly suggest, that a
riparian owner may lose as well as gain from changes in the water boundary
34 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -35- 2024:PHHC:040486-DB
and other connected cases
or level. Moreover, any lands abutting a river makes the riparian owner,
who owns the soil, to be presumed to own half the bed of the river,
irrespective of the said ownership over half of the bed of the river not
becoming expressly made in the grant. Nonetheless, the said presumption is
rebuttable if there was no intention as such on the part of the bed as far as
the centre line.
44. In the light of what is stated above, the individual cultivators,
who own lands abutting the rivers concerned, which undergo changes in
their courses, thereby do become entitled to alluvion deposits, as become
made on the lands, adjunct to the rivers, thus on the premise, that riparian
owners own lands but not only on the banks of the rivers but also such
ownership extending upto the half of the bed(s) of the rivers concerned,
therebys on exposure to the skies of such beds of the rivers concerned, rather
on change in courses of the rivers, thus taking place, thereby the riparian
owner has a right to claim ownership thereovers, unless of course there is
evidence suggestive, that the revenue records did not express such fact
thereins. In consequence, the entries of ownership in the revenue records,
though may detail the riparian owner to be shamlat deh hasab rasad khewat,
and, though only in the column of cultivation thereof, there may occur the
names of individual proprietors, but if such individual proprietors claims
rather the application to them of the apposite savings clauses, besides adduce
cogent evidence qua the benefit of the apposite savings clauses becoming
assigned to them. Resultantly therebys the said private cultivators, thus
would enjoy the ownership rights over those lands which become exposed to
the skies, on the occurrence of changes in courses of the rivers concerned.
45. In short, though this Court has declared the impugned deletion
35 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -36- 2024:PHHC:040486-DB
and other connected cases
to be ultra vires the Constitution. However, it is yet imperative for the
riparian owner to prove, that he holds the land abutting the banks of the river
concerned, besides is also required to imperatively prove that earlier to the
changes in the courses of the river taking place, he had a well leverage to on
the basis of application to him of the apposite savings clauses, thus stake a
claim for ownership rights thereovers.
46. Moreover, reiteratedly the statutory right of re-distribution, and,
re-partition of reserved lands, thus to the estate holders concerned, especially
when such reservations are made from pro rata cuts being made from their
legitimate land holdings also cannot be expropriated, but with a rider that the
such reserved lands were existing on the banks of the rivers concerned,
and/or were rivarian lands.
47. Moreover, river actions are uncontrollable by humans, rather
are events of vis major. Resultantly, when the movement of rivers cannot
become frozen nor can become statasized by human action, therebys when a
riparian owner neither can foresee, nor control the flow of the rivers. In
sequel, when on account of river action, the extent of his ownership over the
soil, is subtracted, therebys when on a future change in course of river, thus
qua the alluvion deposits, thus causes increase in his ownership. Therefore,
when the individual cultivator who owns land adjunct to the banks of the
river concerned, faces the risk of his losing the land on account of
submergence thereof in the river. In sequel, he has to be assigned the benefit
of alluvion deposits, as occur on the banks of river on account of the change
in course of the river. The said riparian owner also becomes entitled to
claim ownership over those lands, which become exposed to the skies, on
the change in course of rivers, but of course on the banks of such rivers, the
36 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -37- 2024:PHHC:040486-DB
and other connected cases
individual owner holding individual title, and/or subject to the individual
owner establishing his title over the lands adjunct to the river, as therebys
the riparian owner can claim his owning land upto the middle of the stream,
and, can also claim, thus on the exposure of such lands to the skies, as
happens on account of change in course of the rivers, that he has ownership
rights thereovers.
48. Tritely put, also the acquisition of title, thus in the above modes
to shamlat deh lands affected by river action but also cannot be precluded
through the omission (supra). Since the impugned deletion, thus does cause
the relevant obstacles, thereby also the impugned legislation is liable to be
declared to be ultra vires Article 31-A of the Constitution of India.
49. To the considered mind of this Court, the above are fine
principles which are covered by the various judgments which are recorded
hereinabove. However, the said principles have been deviated by the deleted
provision, and, rather through the deleted provision, thus the legislature has
attempted to foresee that there would be no change in the course of river,
besides has attempted to untenably perceive, that forevers the rivers would
take a direction as the legislature deems fit. The said perceptions, and,
contemplations were not within the domain of the legislature, as thereby the
doctrine of vis major has been attempted to be untenably curtailed.
50. For all the reasons assigned hereinabove, this Court is of the
firm view, that the deleted provision has completely truncated the rights of
riparian owners vis-a-vis the alluvion deposits, as made on the banks of the
river whereons they hold rights of ownership, besides has also snatched the
rights of the riparian owners to claim ownership over those lands which are
earlier submerged in the rivers, and, which become exposed to the skies on
37 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -38- 2024:PHHC:040486-DB
and other connected cases
account of change in courses of the rivers, as the riparian owners have the
right upto the middle of the bed of the river.
51. However, reiteratedly the effect of the above conclusion, is not
to be taken to be relieving the individual cultivator concerned to, rather
evidently own lands adjunct to the rivers concerned, both in terms of the
relevant savings clauses to the definition of shamlat deh, besides he is also
required to be establishing his statutory right to claim re-distribution, and,
re-partition to him of the lands subjected to rivarian action, and, which
became so reserved from a legitimate pro rata cut being made from his
legitimate holdings. Therefore, it would be imperative upon the individual
land owner concerned, to, before the jurisdictionally competent statutory
forum or before the jurisdictionally competent Civil Court concerned,
establish that he owns land adjunct to the river concerned, and, that therebys
to the alluvion deposits, as made thereovers he has a right to stake
ownership. Moreover, the individual cultivator concerned, is also required
to establish, if he intends to stake a claim of ownership to earlier submerged
lands which later became exposed to the skies, on account of change in the
course of rivers, that he owns lands adjunct to the river concerned.
52. Be that as it may, the revenue officials concerned, do not appear
to be making constant surveys, in respect of the lands abutting the rivers
concerned, either in the State of Punjab, and, in the State of Haryana. The
said constant land surveys were imperative to ensure that as and when
change in courses of rivers take place, thereby the revenue officials
concerned, visiting the lands abutting the rivers concerned, and, as such
theirs updating the records manifestive, that the private cultivators, who
were earlier holding the lands adjunct or adjacent to the banks of the rivers,
38 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -39- 2024:PHHC:040486-DB
and other connected cases
thus on occurrence of changes in courses of the rivers concerned, do become
reflected in the revenue records to become entitled to claim ownership over
such alluvion deposits. The updation of records is required to be made by
references to the earlier records whereins such riparian owners are reflected
to be owning lands adjunct or adjacent to the river banks concerned.
Moreover, since the riparian owners may also become entitled to claim
ownership over the earlier submerged lands which later become exposed to
skies, on account of changes in courses of the rivers concerned, thereby too,
the revenue agencies both in the State of Punjab, and, in the State of
Haryana are required to on such changes in courses of rivers concerned,
taking place, and/or therebys the beds of the water bodies concerned,
becoming exposed to the skies, make survey measurements of the relevant
riparian sites, and, to thereafter vis-a-vis the earlier recorded riparian owners
make updation of records. Furthermore, the revenue agencies concerned, are
also required to facilitate the riparian owners to claim the benefits of rights
or re-distribution, and, re-partition to them of the appositely reserved lands,
which become so reserved on account of pro rata cuts being made from their
respective legitimate holdings, especially when such lands are also subjected
to rivarian action. Significantly since the rivarian actions may render
unutilizable those lands which become so reserved for the common user of
the village proprietary body, especially when therebys qua such lands the
estate holders have a right to claim re-distribution and re-partition to them.
Resultantly, the revenue agencies, more especially, of the consolidation
department, are required to be constantly making survey measurements of
the relevant sites, so that the records of rights are updated, in terms of the
relevant provisions of the Act of 1948. Furthermore, the above would
39 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -40- 2024:PHHC:040486-DB
and other connected cases
ensure reverences being meted to the well recognized principle relating to
riparian ownership, that a riparian owner acquires title to all additions
thereto or extensions thereof by such means and in such manner, and loses
title to such portions as are so worn or washed away or encroached upon by
the water, in the absence of any provision or agreement to the contrary.
53. As stated (supra), there is complete deficit of manpower, and,
staff in the revenue departments concerned, respectively working in the State
of Punjab, and, in the State of Haryana, for the makings of the imperative
constant surveys in commensuration, with changes of courses of rivers,
which flow within the territories of the said States, so that therebys, the
records of rights are updated. The said deficit of manpower is required to be
immediately overcome through a direction being passed by this Court,
respectively upon the Additional Chief Secretaries (supra) in the revenue
State of Punjab, and, in the revenue State of Haryana, to within three months
from today, employ in those territories, which are subjected to river action,
thus two kanungos, and, two Patwaris each in the halqas concerned.
54. The necessity of the above also arises from the factum, that the
constant measurements are to be made of the lands subjected to rivarian
action, and, thereafter the records of rights are required to be updated, so that
the said updation of records, facilitates the riparian owners to well stake
claim of ownership vis-a-vis the alluvion deposits, as become made on their
respectively owned lands, thus adjunct to the water bodies concerned.
Contrarily if the said measurements are not done or not constantly done in
terms of the change in courses of rivers, which flow within the territories of
the States of Punjab and Haryana, therebys there is likelihood of trampling
over the established rights of the riparian owners, who evidently own lands
40 of 41
Neutral Citation No:=2024:PHHC:040486-DB
CWP No. 22738 of 2016 (O&M) -41- 2024:PHHC:040486-DB
and other connected cases
adjunct to the water bodies concerned, and, who also thereby own lands upto
the middle of the bed of the rivers concerned, and, who on exposure of such
river beds to the skies, thus on the occurrence of change of courses of the
rivers become entitled to stake ownership rights thereovers.
Final order
55. With the afore findings, and, observations the petitions (supra)
are disposed of. The impugned enactment is declared to be ultra vires the
constitution, and, also is declared ultra vires the savings clauses to the
definition of shamlat deh, besides is declared ultra vires to the rights of re-
distribution, and, re-partition, as invested in the estate holders concerned,
thus in terms of the relevant provisions of the Act of 1948.
56. The pending application(s), if any, is/are also disposed of.
57. A compliance affidavit qua the directions (supra) be filed before
this Court on 4.7.2024.
(SURESHWAR THAKUR)
JUDGE
(LALIT BATRA)
JUDGE
March 19th, 2024
Gurpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
41 of 41
