Holding

Section 26, read with Rule 13, creates a transferable right in favour of encumbrance holders and authorises the Consolidation Officer to put them in possession of the corresponding part of the substituted holding.

Summary

The case arose from consolidation proceedings under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, where the landowner Chandgi was allotted substituted parcels of land and the tenants Amar Singh and Jagram, who had been non‑occupancy tenants of the original holding, were not given corresponding parcels. The tenants applied under Sections 21 and 26 of the Act and the Consolidation Officer ordered that they be put in possession of the appropriate substituted parcels (order dated 28‑April‑1960). The landowner challenged the officer’s order in civil courts, arguing lack of jurisdiction; the trial court and lower appellate court held the civil courts had no jurisdiction, but the High Court reversed and held the officer had no power under Section 26. On appeal, the Supreme Court held that Section 26, read with Rule 13, creates a transferable right in favour of encumbrance holders and confers jurisdiction on the Consolidation Officer to put them in possession of the corresponding part of the substituted holding. The High Court’s view was reversed, the officer’s order was upheld, and the tenants were ordered to be given possession of the allotted lands.

Issues considered

The scope and effect of Section 26 of the East Punjab Holdings (Consolidation) Act, 1948, read with Rule 13, with respect to creating a right for encumbrance holders (including non‑occupancy tenants).
Whether the Consolidation Officer has jurisdiction to order possession of substituted holdings in favour of such encumbrance holders.
The jurisdiction of civil courts to entertain suits challenging orders passed by the Consolidation Officer under the Act, in view of Section 44.
The fate of the rights of non‑occupancy tenants and mortgagees upon consolidation and re‑allocation of land.

Legislation cited

Delhi Land Reforms Act
East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948s. 100 of CPC, s. 14, s. 16, s. 16A, s. 21, s. 23, s. 24, s. 26, s. 44, s. 45, s. 46

Subjects

Land consolidationNon‑occupancy tenantEncumbranceSection 26Rule 13Civil court jurisdictionPossession orderLand reform

Judgment

A AMAR SINGH JAGRAM (DEAD) BY LRS.
v.
CHANDGI S/0 DEEP CHAND

NOVEMBER 2, 1988

B [M.P. THAKKAR AND B.C. RAY, JJ.]

East Punjab Holdings (Consolidation and Prevention of Frag·
mentation) Act, 1948: Sections 26, 46 and Rule 13-Allotment of land
either to 'land owner' or 'occupancy tenant'-Rights are however trans-
ferred from the 'original holding' to the 'substituted holding' allotted to
C landowners-Right created in favour of encumbrance holder including
a non-occupancy tenant.

Pursuant to consolidation proceedings Initiated under the East
Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,
1948, a scheme of repart,ltlon was framed, and the respondent-land
D .owner was allotted alternative lands In lieu of his original holdings. The
appellants-tenants who were in actual possession and were actually
cultivating prior to consolidation two different parcels of land in the
'original holding of the land owner, as non-occupancy tenants, were not
put back In possession of the corresponding parcels in the substituted
lands.
E
The tenants initiated proceedings under section 21/26 of the Con-
solidation Act. The Consolidation Officer upheld their claim and passed
orders on 28.4.1960 that corresponding parcels in the substituted lands
should be restored to the tenants.

F The land owner instituted two separate suits challenging the
orders of the Consolidation Officer as without jurisdiction. The trial
court and the lower appellate court held that the Civil Courts had no
jurisdiction to entertain the suits. In the second appeals, the High Court
held that the Civil Courts had jurisdiction to entertain the suits, and
rertianded the cases.
G
Upon remand, the Trial Court repelled the contention of the land·
owner that the orders passed by the Consolidation Officer were without
jurisdiction. The Lower Appellate Court confirmed the jl}dgment and
order of the Trial Court and, inter alia, rejected the contention of the
land owner that the tenants should have pressed their claim when
H partition and re-partition Schemes were being ·framed under Sections
738
AMAR SINGH v. CHANDGl 739
~ 14 to 21 of the Consolidation Act. A
The High Court, in second appeal, however took the view that the
Consolidation Officer had no jurisdiction to exercise powers under sec·
lion 26 of the Consolidation Act, that no right was created in favour of
mortgagees, lessees or holders of encumbrances In respect of original
holdings under section 26 read with Rule 13, and that such rights must B
be determined before the scheme is confirmed and If this has not been
done the holders of such encumbrances cannot seek any relief under
section 26 read with rule 13 or any other provision.

Allowing the appeals, It was,

HELD: (1) The Act contemplates the allotment of substituted
c
!II lands In lieu of lands comprised in original holding on repartition only
to two categories of landholders namely the landowners and the occu·
pancy tenants. f748E) '

(2) So far as the allotment of land is concerned it is either to the D
"" 'land owner' or to the 'occupancy tenant' who would under the Act
become the owner in his own right having regard to the statutory
provision for extinguishing the rights of the land owner In such land as
is in possession of the occupancy tenant. [748G-H)
'
(3) So far as this basic scheme for allotment of the lands on E
repartition is concerned it does not take into account any rights of
::; non-occupancy tenants, mortgagees, or holders of other encumbrances
with which the original holdings of the land owners or the occupancy
tenants were already burdened. l748H; 749A)

(4) So far as non-occupancy tenants are concerned 'the only provi· F
sion which the Legislature has designed is Section 26 relating to en·
cumbrances of the land owners and tenants. l749AJ

(S) So far as non-occupancy tenants or mortagees and other
holders of encumbrances in respect of pre-repartitioned original hold·
lngs are concerned, their rights stand transf..,-red by virtue of the G
operation and effect of the statutory provision embodied in section 26
Itself from the 'original holding' to the 'substituted holding' allotted to
the land owners and the occupancy tenants under the scheme. [7SOC-D I

(6) Section 26 has been enacted with a view to provide for a
statutory fastening of the right which subsisted in favour of the H

"'
'
740 .SUPREME COURT REPORTS ll988] Supp. 3 S.C.R.

A mortgagee or the non-occupancy tenant of the holder of other encum-
brances, to the new holding which the land owner (or the occupancy
tenant) is allotted under the scheme of consolidation and re-partition
made pursuant thereto. [750E-F]

(7) On a true reading of section 26 read with Rule 13, a right
B has indeed been created in favour of an encumbrance holder including a
non-occupancy tenant. And jurisdiction has been conferred on the Con-
solid!ltio11 Officer to put the holder of the encumbrance jn possession of
the corresponding parts of the substituted holding allotted to the land
owner in lieu of his ori~inal holding if he was in posession of the original
1loldi11g. l7S08; 751AJ
c (8) The High Court was wrong in taking the view that section 26
does not create any independent right and that if deals only with the
rights of such persons to whom land is allotted under the scheme and
the repartition made pursuant thereto. [751A-BJ

D (9) The High Court failed to realize that in fact section 26
would come into operation only subsequent to and only upon t!Je
re-allotment to the original owner being made and he being put in
pos~ion of the substituted holding in lieu of the orjgina) holding
Up!>!! repartition. [751A-B]

E Munshi v. Bhagwan, R.S.A. No. 81-T of 1961 decided by the -·
·~.-
Delhi High Court on 29.4.1964 referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos .
.2014-2015 of 1973.

F Fro111 the- Judgment and Order dated 13.12~ 1972 of the Delhi
High Court in R.S.A. No. 93-D of 1966.

P.P. Juneja for the Appellants.

S,K. Bisaria for the Respondent.
G
The Judgment of the Court was delivered by

THAKKAR, J. What is more difficult, regaining of possession of
agricultural lands to which they had undisputed right, or passing
through the eye of a needle, is the question the appellants may well ask
H in desperation. They may well add that while. in theory for every right
AMAR SINGH v. CHANDGI [THAKKAR, J.] 741

there may be remedy in practice such tenants have no remedy if the
A
interpretation of the scheme of the provisions of the Consolidation
Act 1 made by the High Court is upheld. The original appellants, the
tillers of the lands who have failed to regain possession for a quarter
century after the Consolidation Officer upheld their claim in 1960,
having died during the pendency of these appeals instituted 15 years
back without reaping the fruits of the order in their favour (now rep- B
resented by their heirs) may well be justified in saying so. For,
notwithstanding the finding of fact recorded by the Consolidation
Officer in his order dated April 28, 1960 that the original appellants
were in possession of these lands as non-occupancy tenants prior to
consolidation in the course of which the concerned land-owner was
allotted parcels of land other than the parcels comprised in his original
holdings, and they were entitled to be put in possession of the parcels c
which the land-owner was so allotted in lieu of his original holdings,
the tenants have been denied the possession thereof pursuant to the
said order of 1960 directing the.land-owner to put them .in possession.
The said order remained a paper-order upon its being challenged as
being without jurisdiction in a Civil Court. It was so challenged D
notwithstanding a provision' cootailled in the Consolidation Act
excluding the jurisdiction of Civil Courts. The trial court negatived the
plea of the plaintiff land-owner (respondent herein) that the
defendants-tenants were in reality his labourers or servants and not his
tenants. The trial court recorded a finding of fact upholding the plea of
the te~ants which was confirmed by the lower appellate court. This E
finding being a pure finding of fact could not have been, and in.fact
was not assailed in the High Court in the second appeals under Section
100 of the Code of Civil Procedure, preferred by the land-owner. The
High Court did not disturb this finding, as indeed it could not have in
view of the statutory limitation of section 100 of the Code of Civil
Procedure, and yet allowed the second appeals preferred by the land F
owner upholding his plea that the tenants had no remedy under the
Consolidation Act in view of the interpretation of the scheme of the
provisions of the said Act convassed by the land-owner which was
sustained by the High Court. The Chequered history of the litigation
giving rise to the present appeals' may now be traced.

One Chandgi (respondent herein) had inducted two tenants

1. East Punjab Holdings (Consolidation and Prevention of Fragmentation)
Act, 1948.

2. Section 44 of the Cao~lidation Act.
3. By Special leave granted by this Court. H
742 SUPREME COURT REPORTS (1988] Supp. 3 S.C.R.

(Jagram and Amar Singh) who were in occupation of two different
A parcels of land from out of khasra Nos. 3, 8, 9, 12 and 18 of Village
Bawana in Delhi. In the consolidation proceedings initiated under the
Consolidation Act, a scheme of repartition was framed and in lieu of
the aforesaid parcels of land he was a)lotted Killa Nos. 21 (4 bighas 16
biswas), 22 (4 bighas 2 biswas) and 23 (4 bighas 16 biswas) of rectangle
B No. ·2. Thus the lands originally comprised in his holding were
substituted by the lands comprised in the aforesaid parcels which were
allotted to him under the consolidation scheme. The tenants were in
actual possession and were actually tilling two parcels out of the origi-
nal holding prior to consolidation. However, after the allotment of the
other parcels of land in substitution of the original parcels of land the
tenants were not put back in possession of the corresponding parcels in
c the substituted lands. Thereupon they approached the Consolidation
Officer viz. the Naib Tehsildar at Delhi by initiating proceedings
under Section 21/26 of the Consolidation Act. Each of them made a
separate application on the premise ·that in lieu of the land which he
was cultivating as a non-occupancy tenant prior to consolidation the
D corresponding parcels should be restored to him. from out of the re-
allotted lands substituted in lieu of original holding under the Consoli-
dation Scheme. The landowner, Chandgi, lodged an objection. He
raised the plea that Amar Singh and Jagram no doubt were tenants in
1950 but that they had voluntarily given up the possession thereof
prior to the consolidation and that the land-owner himself was in pos-
E session prior to consolidation. The parties produced oral and
documentary evidence. After considering the relevant material inciud-
ing the land records and entries of khasra Girdawari the Court of the
Consolidation Officer (presided over by Naib Tehsildar) r.ecorded a
finding in favour of each of the tenants. Reliance was placed on the
fact that the kharif of 1950 and Rabi of 1951 crops were raised by the
F tenants as per the entries in the khasra girdawari. He also accepted the
oral evidence adduced on behalf of the tenants and reached the conclu-
sion that the tenants were in actual possession and that they had not
surrendered the tenancy as pleaded by the landowner. He, therefore,
upheld the claim of the tenants and passed an order in their favour on
28th April, 1960 whereby he directed that the corresponding parcels •
G of land 1 in the substituted killa numbers be allotted to the tenants and \
•.that warrant for possession be issued in favour of the tenants. The
land-owner did not challenge this order by way of a revision petition
~nder Section 42 of the Act. Nor did he challenge the said order by way
of a Writ Petition to the High Court. Thus the order became final as per
1. KiUa Nos. 21 to 23 -to _be allotted to Amar Singh and 4 Bighas and- 4
H Biswas out of KillaNo. 18 to be allotted to Jagram.
AMAR SINGH v. CHANDGI [THAKKAR, J.[ 743

the submission of the tenants inasmuch as the jurisdiction of the civil
A
court was excluded by section 44 of the Consolidation Act. Chandgi
the common land-owner against whom the aforesaid two orders dated
April 28, 1960 were passed by the Court of Naib Tehsildar, Delhi,
exercising powers as Consolidation Officer, thereafter instituted two
separate suits against Jag Ram and Amar Singh raising indentical con-
tentions, challenging the said orders of the Conso!fdatio11 Officer, as B
without jurisdiction and obtained an order of stay. The tenants con-
tested the suits. The trial court came to the conclusion that the Civil
Court had no jurisdiction to entertain the suits and dismissed the suits.
The land-owner preferred appeals to the lower appellate court and
upon failing in the appeals, preferred two second appeals to the High
Court, which by its order dated April 1, 1965' remanded the matter
back to the trial court to decide the other issues as in the opinion of the C
High Court the Civil Court had jurisdiction to entertain the suit. Upon
remand, the trial court again recorded a finding in favour of the
tenants and repelled the contention that the impugned orders dated
April 28, 1960 were without jurisdiction. Meanwhile it appears that
the land-owner had been declared a bhumidar of the land in question D
under the Delhi Land Reforms Act on the premise that he was in
possession on the material date. The land-owner appealed to the Court
of the Senior Sub-Judge, Delhi who disposed of both the appeals by an
extremely well considered common ;udgment dated February 10,
19662 whereby he confirmed the judgment and order of the trial court
upholding the contention of the tenants that the order passed by the E
Consolidation Officer was legal and valid. Before the learned Senior
Sub-Judge the plaintiff-land-owner had raised the contention that the
defendants were not the tenants of the land at all and were merely
labourers or servants and were not entitled to be put in possession.
The learned Senior Sub-Judge negatived this contention of the
plaintiff-land-owner and recorded a clear finding to the effect that the F
defendants were tenants of the pre-consolidation land prior to the
commencement of the Consolidation proceedings in 1952 and that the
defendants were in possession of the lands as tenants prior to the
consolidation proceedings as reflected in the passage extracted
therefrom:
"Learned counsel for the plaintiff then contended that the G
defendants were not the tenants of land, that they were
merely helpers or servants and that, therefore, they were
'
( not entitled to be put in possession. But, as has been rightly
!. In R.S.A. No. 5 lD and 52 of 1962.

2. In R.S.A. Nos. 360 and 361of1965. H
744 SUPREME cotl!lt REPdii.ts [1988] Supp. 3 S.C.R.

held by the Lower Court, it does not sldlid substantiated that
A
the defendants were merely servdrits or helpers. The plaintiff
did produce, ~ome oral evidence in that connection. He
when appeared as his own wiiness (PS 3) stated that the
dekrldal)ts acied as labourers for oiie year, that they gcii
!iieir wages ih kind afld ihat they went away. The entries in
the khasra Girdawari however, do not support the case of
the plaintiff. They rather support the case of the
defendants. A copy of the Khasra Girdwari is Ex. D.4.
That shows Khasra Nos. 3, 8 and 12 were in possession of
Amar Singh as a tenant in Khariff 1950 and 1951. Khasra
No. 9 is shown to be in cultivation as a t,enantof Jag Ram iii
Rabi and Khariff 1950 and 1951. This clearly shows that the
c defendaiiis were the tenants of the pre-consolidation land. It
was stated by the plaintiff Chandgi as PW 3 on examina-
tion-in-chief that consolidation proceedings started in the
year 1952. That means that the defendants were continuing
as tenants prior to the start of consolidation proceedings."
(Emphasis added)

Thus, a coilcllrient finding of fact was recorded in favour of the
tenariis by the trial court and the lower appellate court, that the
defendants were tenants in respect of the lands in question and were in
·possession prior to the consolidation proceedings in the year 1952. The
E: plaintiff-land-owner also raised on inconsistent alternative plea that
even if defendants were tenants, they had relinquished and abandoned
their tenancies. On this point also the lower appellate court recorded a
clear finding in favour of the tenants. For the sake of preciseness the
relevant passage from the judgment dated 10th February, 1966
deserves to be quoted:
F "Learned counsel for the plaintiff then urged that even if it
be taken for granted that the defendants were tenant, they
had abandoned their tenancies, that therefore, they had
ceased to be tenants and were not erltiiled to be put in posses-
sion of the post'consolidation laiid. He pointed out td tlie
copy of the Khasra Girdawati Ex. D. 4. That copy shows
that in Khariff 1951 the land mainly remained uncultivated.
He urged that showed that the defendants had ceased to
take any interest which raised a necessary inference that
they had relinquished their tenancies. The argument is
clearly con jeclural. The mere fact tliat tlie ltiiid remained
uncultivated [Of one crop, does not raise any inference aboui
1-i the relinquishment of the tenancy by the tenants."
AMAR SINGH v. CHANDGI [THAKKAR, J.] 745

Thus, the plea that the defendants-tenants had 'relinquished' or A
'abandoned' their tenancies has been negatived both by the trial court
and the lower appellate cou:rt and the concurrent finding of these two ·
courts is iil favour of the ttnants. The other contention that was raised
was that the land-owner had meanwhile obtained Bhumidari rights
under the Delhi Land Reforms Act and that the orders dated April 28,
1960 passed in favour of the two tenants under Section 26 of the B
Consolidation Act could not be given effect to. The Lower Appellate
Court rejected this plea on the ground that the provisions of the Con.-
solidation Act were not repealed by the provisions of the Defhi
Reforms Act and unhesitatingly repulsed the plea of the appellant-
land-owner.

Lastly it was contended that the Consolidation Officer had no
c
jurisdiction to pass an order Under Section 26 of the Consolidation Act
in favour of the tenants and that the tenants should have pressed their
claim wheh partition and re-partition Schemes were being framed
under Sections 14 to 21 of the Consolidation Act. The Lower Appel-
late Court rejected this plea also on the ground that the point was ))
covered by a decisio.n rendered by H .R. Khanna, J. of the High Court
(as he then was) in R.S.A. No. 81-T of 1961 in the case of Munshi v.
Bhagwan decided ort April 29, i964. The plaintiff-land-owher prefer-
ted a second appeal to the I-iigh Court. Ordinarily this appeal would
have been heard by a learned Single Judge of the High Court under
section 100· of the Code of Civil Procedure on a question of law. The £
matter was however head along with a group of Letters Patent Appe-
als by a Division Bench. The High Court rendered its common judg-
ment in LP.A. No. 271/71 giving rise to the present appeals. The High
Court took the view that the Consolidation Officer had no jurisdiction
to exercise powers under Secilon 26 of the Consolidation Act. The
reasoning of the High Court is reflected in the following passage: f
"The power of the Chief Commissioner or of any authority
under the Act to revoke a scheme or vary an order must be
read to mean during the consolidation proceedings. In
other words, these powers cannot be exercised once the
scheme is deemed to have come into force and the posses- O
sion to the allottees covered by the scheme of consolidation
or, as the case may be, by repartition has been given sub-
ject, of course, to any changes that may be ordered in
pursuance of the proVisions of sub-sections (2), (3) and (4)
of Section 21 or an order passed under Sections 36 or 42 of
the Act provided the power under sections 36 or 42 are H
746 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

invoked during the consolidation proceedings. The orders
A
of the authorities under the Act including the orders of the
Chief Commissioner have to be passed to further scheme
and the re-partition proposals and cannot be passed to
order possession to be given to anyone who is not covered
by section 26(1) 6f the Consolidation Act for Section 26
B really reiterates the effect of the consolidation holdings
which has to be carried out in the manner set out in Sec-
tions 14 to 23 read with the relevant rules. The Consolida-
tion of holdings stands concluded as provided by Section 24
once the persons entitled to possession of holdings have
entered into possession and there.after the possession can-
not be disturbed until a fresh scheme is brought into force
c or a change is ordered in pursuance of provisions of sub-
sections (2), (3) and (4) of section 21 or an order passed
under Section 36 or Section 42 of the Act in proceedings
that may be pending prior to the persons entitled to posses-
sion entering into possession or being held entitled to pos-
D session as provided in sub-sections (1) aod (2) respectively
of Section 23.

In view of the discussion hereinabove it is obvious
that no independent right accrues to tenaots or other
persons under Section 26 of the Consolidation Act. If a
E person is not held entitled to possession as postulated by
Section 26 in the first instance either when the Scheme is
formulated or the· repartition proposals are made or
implemented, there is no fresh determination of rights to
be made under Section 26 by invoking Rule 13 of the Con-
solidation Rules. The determination takes place earlier and
F the Consolidation Officer has merely to carry out what has
already been determined. Further under Rule 13 only the
right of possession is to be settled and not the question of
traosfer of encumbrance or allotment. It, follows, there-
fore, that if no determination of rights can be made under
Section 26 and consequently no appeal lies from any order
G purported to have been passed under Section 26 even the
Chief Commissioner caonot by virtue of Section 42 make
an order at that stage."

Thus, the pre-consolidation tenaots who had succeeded in securing an
order for possession in their favour in 1960 in view of the finding in
H their favour that they were tenants in respect of the lands comprised in
AMAR SINGH v. CHANDGI {THA~KAR, J.] 747

the pre-consolidation holding of the land-owner prior to the consolida-
A
tion 'llnd were accordingly entitled to be put in possession of the cor-
responding lands allotted to the land-owner in lieu of the original
holdings, have been obliged to approach this Court by way of the
present two companion appeals which have been directed to be con-
solidated by an earlier order of this Court. They have been obliged to
approach this Court notwithstanding the fact that the aforesaid order B.
passed by the Consolidation Officer was not challenged by way of
appeal or revision under the Consolidation Act or assailed by way of a
Writ Petition and notwithstanding the fact that the trial court and the
lower appellate court have recorded a concurrent finding in their
favour that they were tenants in respect of the pre-consolidation hold-
ings of the plaintiff-land-owner and that his plea that they were lab- C
ourers was untenable and his alternative plea that they had relinquis-
hed or abandoned the tenancy was also unsustainablcr.

The structure of the reasoning of the High Court, as is evident on
an analysis of the passage extracted from its judgment, is built on· six
premises viz: D

1. Exercise of powers under section 26 to put the mortgagees or
lessees of original owners in possession amounts to variation
or modification of the scheme and the authorities under the
Act have no jurisdiction to pass orders in this behalf 'after'
the commencement of the scheme. E

2. Section 26 reitera(es the effect of the re-partition proposals
embodied in the scheme and those who are not allottees
under the scheme can not invoke powers under Section :6.

3. Unless a fresh scheme is brought into force or alteration is F
made under Section 21(2), (3) and (4) or an order is passed
under Section 36 or 42 pending proceedings, the possession of
persons in whose favour allotment is made can not be dis-
turbed. It can not be disturbed in exercise of powers under
Section 26.
G
4. No right is created in favour of mortgagees, lessees or holders
of encumbrances in respect of original holdings under Section
26 read with Rule 13. Such rights must be determined before
the scheme is confirmed and if this has not been done the
holders of such encumbrances can not seek any relief under
Section 26 read with Rule 13 or any other provision. 1-J
748 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

5. No determination of rights of holders of encumbrances in
A
respect of original holdings can be made under Section 26.

6. The right of transfer of encumbrance from original holding to
substituted holding cannot be determined under Rule 13. All
that is done under the said rule is to direct possession if right
is already determined as per the scheme.

The petspective of the Consolidation Act has to be compre-
hended before eli:aniining the validity of the opinion formed by the
High Court. The object of the Consolidation Act as revealed by the
jlreamble is "to provide for the compulsory cbttsolitla!itlli ol'
t: agricultural holdings and for preventing the fragmeritatiilrt of iHe ag'
ricultural hotdihgs in the State of Punjab". The rliairt objeciive of the
Act Is to sed1Te that the agricultural operations are carried on in a
more ·efficient manner with the end in view to promote public good by
puttiilg the agricultural land to the optimum use so that it is a viaBie
unit for purposes of carrying on agricultural operations in a more
:Jj efficient and economic manner. For this purpose the Consolidation
Officer may frame a scheme. The scheme may visualise repartitioning
tlf the lahds so that the land holder may get some other parcels of hiiid
iii Heu •of llie parcels of land ·originally heid by him. tile reparlitiori as
ehvisag"ed by the scheme woliid have to be nlade by !lie Ccinsoiidaiion
Officer In ti:le light of the scheme. The Act coriteiiiplates tiie iiliotnient
E of substituted lands in lieu of lands comprised iii original Bolding on
repartition only to two categories of land-hokiers rtamely the land-
owners and to the occupancy tenants. Section 16 of the Act cO!ilei1\p-
lates distribution of land held under occupancy tenancy between ti:le
tenants holding the right of ciccupartcy citi tlie one hand and Ille land-
owners on the other in sucli prcipciHiohs as may be agreed upoiL whett
F the scheme Is rorifirirted iiiider Sediotl 20, the lands so allotted to tlie
1>ccupaizcy lenanis and !and owners would be held by illem iil fu!i right
·of ownership tilid the occuptilicy tenancy of the land owner would be
deemed to be dtinguished as contemplated in Section 16(2). Section
i6A provides for partition of land between joint owners of land or
between joint tenants of a temihcy in wliici:l a right to occupancy sub-
G sists in accordance wilh the share of each owner and each occupancy
tenant. Thus, so far as the allottnertt of land is concerned it is eiilief ici
the 'lartd owner' or to the 'occupancy tenartt' who would under Hie Act
become the owner irl his own· right havihg regard to the siahitory
provision for extinguishing the tights of the land o\\lrler in silch laiid as
is in-possession of the occupancy tenant. So fat as this basic scheme for
H: allotment of the lands oh repartition is concerned ii does riot t.ake itiio
AMAR SINGH v. CHANDGI [THAKKAR, J.] 749

account any rights of non-occupancy tenants, mortgagees, or holders
A
of other encumbrances with which the original holdings of the land
owners or the occupancy tenants were already burdene<j. So far as .
non-occupancy tenants are concerned the only provision which the
Legislature had designed in Section 26 relating to encumbrance of the
land owners and tenants which deserves to be quoted:
B
Section 26(1) "If the holding of a land or the tenancy of a
tenant brought under the scheme of consolidation is
burdened with any lease, mortgage or other encumbrance,
such lease, mortagage or other encumbrance shall be trans-
ferred and attached to the holding or tenancy allotted
under the scheme or to such part of it as the Consolidation
Officer subject to any rules that may be made under Section c
45, may have determined in preparjng the scheme; and
thereupon the lessee, mortgagee or other encumbrancer,
as the case may be, shall cease to have any right in or
against the land from which the lease, mortgage or other
encumbrance has been transferred. D

(2) If the holding or tenancy to which a lease, mortgage or
other encumbrance is transferred under sub-section (1) is
of less market value than the original holding from which it
is transferred, the lessee, mortgagee or other encum-
brancer, as the case may be, shall subject to the provisions E
of section 34 be entitled to th< rayment of such compensa-
tion by the owner of the holding, or"" the case may be, the
tenant as the Consolidation Officer may determine.

(3) Notwithstanding anything contained in section 23, the
Consolidation Officer shall if necessary put any' lessee or F
any mortgagee or other encumbrancer entitled to posses-
sion, in possession of the holding or-tenancy or part of the
holding or tenancy to which his lease, mortgage or other
encumbrance has been transferred under sub-sectioin (1)."

As indicated in Section 26, Rule 13 has been made under the authority G
of Section 46 which provides:

"Putting the encumbrancer in possession-If the lessee,
mortgagee or other encumbrancer appears to the Consoli-
dation Officer to be entitled to possession of a holding
under Section 26, the Consolidation Officer shall issue a H
750 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A notice to the owner to show cause within fifteen days of the
receipt of the notice why the lessee, mortgagee or other
encumbrancer, as the case may be, should not be put in
possession of such holding. If the owner fails to show cause
or if the Consolidation Officer is satisfied that the cause
shown by the owner is not adequate, he shall put the Jesse~,
B mortgagee or other encumbrancer as the case may be into
possession of the holding, and the record of rights in
respect of the holding shall be corrected accordingly."

It is therefore clear that so far as non-occupancy tenants or mortgagees
and other holders of encumbrances in respect of pre-repartition origi-
nal holdings are concerned, their rights stand transferred by virtue of
c the operation and effect of the statutory provision embodied in section
26 itself from the 'original holding' to the 'substituted holding' allotted
to the land owners and the occupancy tenants under the scheme. This
provision has been made for the obvious reason that the mortgagee or
the non-occupancy tenant would have no right in the lands comprised
D in the substituted holdings as per the contract referable to the lands
comprised in the original holding. Since the original holding would be
no more in existence upon repartition they cannot assert their rights
r1gainst the original holdings. What would then happen to their pre-
existing rights? Would such rights stand extinguished? Such unjust
result cannot lawfully be brought about without offending the constitu-
E tional rights of the mortgagees or..the non-occupancy tenants. That is
the reason why section 26 has been enacted with a view to provide for a
statutory fastening of the right which subsisted in favour of the mort-
gagee or the non-occupancy tenant or the holder of other encum-
brances. to the new holding which the land owner (or the occupancy
tenant) is allotted under the scheme of consolidation and repartition
F made pursuant thereto. Sub-section (2) of Section 26 provides for
payment of compensation to the person holding encumbrance if the
value of the land which has been allotted to the land owner in lieu of
his original holding is less than market value of the original holding.
And sub-section (3) confers the jurisdiction on the Consolidation
Officer to put in possession of substituted holding such a lessee or
G · mortgagee or holder of encumbrance of the original holding of the
land owner (or occupancy tenant) who has become the owner of the
substituted land on confirmation of the scheme and repartition made
pursuant thereto. On a true reading of section 26 read with Rule 13, a
right had indeed been created in favour of an encumbrance holder
including a non-occupancy tenant. And jurisdiciion had been confer-
H red on the Consolidation Officer to put the holder of the encumbrance
AMAR SINGH v. CHANDGI [THAKKAR, J.J 751

in possession of the corresponding part of the substituted holding allot-
A
ted to the land owner in lieu of his original holding if he was in posses-
sion of the original ·holding. The High Court was therefore clearly
wrong in taking the view that section 26 does not create any indepen-
dent right and that it deals only with the rights of such persons to
whom land is allotted under the scheme and the repartition n;iade
pursuant thereto. The High Court failed to realize that in'. fact section B
26 would come into operation only subsequent to and only upon the
re-allotment to the original owner being made and he being put in
possession of the substituted holding in lieu of the original holding
upon repartition. The High Court was also in error in failing to realize
that:

( 1) the scheme of the Consolidation Act accords different C
treatment to occupancy tenants and non-occupancy
tenants. Under the scheme allotment of substituted holding
is made only in favour of occupancy tenant and not in
favour of non-occupancy tenants;
D
(2) what becomes final upon the scheme coming into
operation under the Consolidation Act is the right of the
owners and occupancy tenants in regard to the lan_cjs which
are allotted to them in lieu of and in substitution of their
original holdings. In other words finality is attached to the
question as to which land should be allotted to whom in lieu E
of and in substitution of the original holdings;

(3) the reading of the relevant provisions of the scheme of
the Consolidation Act in the unwarranted manner which
commended itself to the High Court would result in· gross
injustice. The mortgagees, the non-occupancy tenants and F
other holders of encumbrances in relation to the original
holding would completely lose their rights, and sections
26(1), (2) and (3) would become meaningless. So also Rule
13 would become lifeless and purposeless;

(4) there is no question of the non-occupancy tenants or G
the mortgagees etc. having any voice or being concerned in
the matter of framing of the scheme or in the matter of
allotment of lands on the repartition of the iands. Only the
land owners and the occupancy tenants would be con-
cerned with regard to this matter;
.H
"[52 SUj'filll\ffi CQµRT REPORTS [ 1988] Supp. 3 S.C.R.

(5) the Consolidation Act itself would be exposed to
A challenge on constitutional grounds if the rights of the
mortgagees and non-occupancy tenants etc. were to be
extinguished as they do not figure in the scheme of reparti-
tion as confirmed under the relevant provisions. In the
framing of the scheme neither the mortgagee nor the non-
occupancy tenant can figure for they were not persons who
were entitled to become the owners of the land allotted in
lieu of the original holding in respect of which they were
only holding an encumbrance. Section 24 would come into
play only with regard to thos.e persons who are owners of
the land or occupancy tenants who were entitled to become
owners of the substituted land under the relevant provi-
c sions of the Consolidation Act;

(6) there is no question of creating any new right in favour
of a mortgagee or a non-occupancy tenant or other holder
of encumbrance. -Section 26 has been designed in order to
ID give effect to the existing rights of such persons by transfer-
ring these rights to the parcels of lands which are
substituted in lieu of the original holding by virtue of the
rcpartitio9;

(7) what the Consolidation Officer does under the said sec-
tion is to define the portion of the land newly allotted
under the scheme to which the right of the holder of the
encumbrance would be attached by operation of la\¥ by
virtue of section 26. The right already existed. But it exis-
ted in respect of the original holding. In order to resolve
the problem arising in the context of the original holding
F bei.ng substituted by a different holding, what section 26
does is ta statutorily transfer the right from the original
holding to the newly allotted holding and no more. How'
ever, since the newly allotted holding might be of inferior
land or of smaller size, the Consolidation Act provides for
\
payment of compensation to the holder of the encum-
brance.

The view taken by the High Court that the order of April 28, 1960 was
without jurisdiction is thus altogether untenable in the eye of law apart
from the fact that it results in wholly unjust and disastrous conse-
quences and cannot accordingly be sustained. The order passed by the
H High Court in so far as it affects the appellants, and only limited to the
\
;. ;

AMAR SINGH v. CHANDGI [THAKKAR. J.] 753

extent that it affects the appellants, is therefore set aside. The order A
passed by the Senior Sub-Judge, Delhi on February 10, 1966 is
restored. In view of the extraordinary delay which has been
occasioned and the great injustice which has been suffered by the
appellants, they shall be put in possession of the lands allotted to them
as per the order of the Consolidation Officer dated April 28, 1960 at B
the earliest. In any case they should be put in possession on or before
March 31, 1989. Both appeals are allowed accordingly.

The respondent shall pay to the appellants costs through011t.

R.S.S. Appeals allowed.