CWP No.1822 of 2007 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. CWP No. 1822 of 2007 Date of decision: 04.10.2008 Mukhtiar Singh ....Petitioner. vs. Joint Development Commissioner (IRD),Punjab and another. ..Respondents CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MS.JUSTICE NIRMALJIT KAUR. --- Present: Mr.Sanjeev Sharma, Advocate, for the petitioner. Mr.P.C.Goyal, Addl.Advocate General,Punjab, for respondent No.1. Mr.Gurcharan Singh, Advocate, for respondent No.2. -- J.S.KHEHAR,J. (Oral) Through this order, we propose to dispose of 13 cases i.e. CWP Nos.1626 of 2007, 1822 of 2007, 1823 of 2007, 1824 of 2007, 1825 of 2007,1826 of 2007, 1827 of 2007, 1828 of 2007, 1829 of 2007, 1830 of 2007, 1831 of 2007, 1832 of 2007 and 1833 of 2007, as the same flow out of the same impugned order dated 12.10.2006 (Annexure P-8). Two issues arise for consideration. The first issue which needs to be decided is whether a Gram Panchayat can file an application under section 7 of the Punjab Village Common Lands (Regulation)Act, 1961 (hereinafter referred to as “the Common Lands Act”) for taking possession of land which is described as “taraf” but the same is not being used for the benefit of the village community, or for the common purposes of the village. This issue will determine the outcome of the Civil Writ Petition CWP No.1822 of 2007 2 Nos. 1626 of 2007, 1822 of 2007, 1825 of 2007, 1828 of 2007, 1829 of 2007, 1831 of 2007 and 1832 of 2007. And secondly, whether the petitioner can be ejected out of land described in the revenue records as “jumla mustarka malkan”. The second issue will determine the outcome of Civil Writ Petitions No.1823 of 2007, 1824 of 2007, 1826 of 2007, 1827 of 2007, 1830 of 2007 and 1833 of 2007. The answer to the first query, noticed hereinabove, emerges from the definition of the tern “shamilat deh”, expressed in section 2(g) of the Common Lands Act. Section 2(g) of the Common Lands Act is, accordingly extracted hereunder:- (g) “Shamilat deh” includes:- (1) Land described in the revenue records as Shamilat deh excluding abadi deh; (2) Shamilat Tikkas; (3) Land described in the revenue records as shamilat, Tarafs, Pattis Pannas and Tholas and used according to revenue records for the benefit or the village community or a part thereof for common purposes of village; (4) Lands used or reserved for the benefit of the village, community including, streets, lanes, playgrounds, schools, drinking wells, or ponds within abadi deh or gora deh ; and (5) Lands in any village described as banjar qadim and used for common purposes of the village, according to revenue records, xx xx xx but does not include land which: (i) xx xx xx CWP No.1822 of 2007 3 (ii) has been allotted on quasi permanent basis to displaced persons; (ii-a) was shamilat deh, but, has been allotted 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 day of July1985; (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) xx xx xx (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 CWP No.1822 of 2007 4 purposes, subservient thereto, immediately before the commencement of this Act. xx xx xx”. Clause (iii) of section 2(g) expressly notices, that only such lands which have been described as “taraf” and are “used according to revenue records for the benefit of the village community or apart thereof, or for the common purposes of the village” fall within the definition of “shamilat deh”. Additionally, reference may be made to the exceptions specially clause (v) of the exceptions envisaged under Section 2(g) of the Common Lands Act, which mandates that land described in the revenue record, as “taraf” but not used according to the revenue records “for the benefit of the village community or a part thereof, or for common purposes of the village” would not be included in “shamilat deh”. The various orders passed by the Revenue Authorities are available on the record of this case, do not refer to any jamabandi or other revenue record, wherein, the land under reference, which has been described as “taraf” is also depicted as being used for the benefit of village community or a part thereof or for any purpose of the village. Thus viewed, the mandate of Section 2(g)(iii) of the Common Lands Act, cannot be deemed to have been satisfied insofar as, the present controversy is concerned to establish, that the land in question is “shamilat deh”. Additionally, it has not been shown by the Gram Panchayat that the land is actually being used for the benefit of the village community or for the common purposes of the village, as such, it is not possible for us to accept, that the lands which were the subject matter of consideration in Civil Writ Petitions No.1626 of 2007, 1822 of 2007, 1825 of 2007,1828 of 2007, 1829 of 2007, 1831 of 2007 and 1832 of 2007 were “shamilat deh” CWP No.1822 of 2007 5 within the meaning of the Common Lands Act. It is only “shamilat deh” in respect of which an application under Section 7 of the Common Lands Act, can be filed by the Gram Panchayat. Section 7 of the Common Lands Act is being extracted hereunder:- “7. Power to put panchayat in possession of Shamilat deh--(1) The Collector shall, on an application made to him by a panchayat, or by an officer, duly authorised in this behalf by the State Government by a general or special order, after making such enquiry, as he may think fit and in accordance with such procedure as may be prescribed put the panchayat in possession of the land or other immovable property in the Shamilat deh of that village which vests or is deemed to have been vested in it under this Act and for so doing the Collector may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act,1887. Provided that if after receipt of the application and before the Panchayat is put in possession of the land or other immovable property in the shamilat deh, a question of right, title or interest in such land or property is raised by any person and a prima facie case is made out in support thereof, the Collector shall direct the person who has raised such question to submit his claim under section 11 and till the question is so determined, the application shall remain pending. Provided further that if the person, who has raised the question of right, title or interest, fails to submit his claim under section 11 within the time prescribed under that section, the Collector shall presume that no question of right, title or interest is involved and shall proceed further to put the Panchayat in possession of the land or other immovable property in the shamilat deh. CWP No.1822 of 2007 6 xx xx xx”. Since, as already noticed hereinabove, the land in the hands of the petitioner, is not “shamilat deh”, the applications filed by the Gram Panchayat were wholly misconceived. The order of ejectment of the petitioner at the hands of the Revenue Authorities is, therefore, wholly without jurisdiction, and is accordingly hereby set aside. In view of the above, the aforesaid seven writ petitions i.e. Civil Writ Petitions No. 1626 of 2007, 1822 of 2007, 1825 of 2007, 1828 of 2007, 1829 of 2007, 1831 of 2007 and 1832 of 2007, are allowed. The impugned order culminating in the order dated 12.10.2006 (Annexure P-8) is, accordingly set aside. The second issue that arises for consideration is whether land described in the revenue records as “jumla mustarka malkan” in the revenue records falls within the definition of the term “shamilat deh” The decision in the remaining cases i.e. CWP Nos. 1823 of 2007, 1824 of 2007, 1826 of 2007, 1827 of 2007, 1830 of 2007 and 1833 of 2007 will depend on the answer to the aforesaid issue. In so far as the second issue is concerned, reference shall be made to the factual position in CWP No.1822 of 2007. The petitioner in the instant writ petition asserts that he is a proprietor of the land under reference. He also asserts that the aforesaid factual position stands reflected even in the revenue records (Annexures P-1 and P-2). Since the respondent Gram Panchayat was threatening to dispossess the petitioner, he filed a suit for permanent injunction against the Gram Panchayat. The suit filed by the petitioner was decreed by the Sub Judge Ist Class, Sultanpur Lodhi, on 20.08.1979 (Annexure P-3). The trial Court held that the land in question CWP No.1822 of 2007 7 was neither “shamilat deh”, nor was the ownership or title thereof vested with the Gram Panchayat. It is submitted that the Gram Panchayat preferred an appeal against the aforesaid judgment/decree dated 20.08.1979. It is however pointed out,that the appeal preferred by the Gram Panchayat was dismissed by the District Judge, Kapurthala, on 03.01.1981 (Annexure P-4). After the dismissal of the aforesaid appeal, it is submitted on behalf of the petitioner, that no further challenge was raised by the Gram Panchayat to the orders passed by the Civil Courts (referred to hereinabove). It is, therefore, submitted on behalf of the petitioner,that the issue in hand, namely, whether the land in question was “shamilat deh”, or not, stood settled between the parties in the civil litigation referred to above, and that; the same could not be re-agitated by the Gram Panchayat except on the plea that the judgments of the Civil Courts were procured by way of fraud and collusion. On the second issue, learned counsel for the petitioner has invited our attention to the accepted factual position that the land in question is “ jumla mustarka malkan” and on the basis thereof contended that such land does not fall within the definition of the term “shamilat deh”. It is also the vehement contention of the learned counsel for the petitioner, that an application for ejectment under Section 7 of the Common Lands Act, can only be filed in respect of “shamilat deh”. And since the land in question was not “shamilat deh”, the instant application was not maintainable at all. Having heard learned counsel for the parties, we find merit in both the submissions advanced by the learned counsel for the petitioner ( as have been noticed in the foregoing two paragraphs). It is not the case of the respondent Gram Panchayat that it was not a party to the civil litigation CWP No.1822 of 2007 8 wherein the issue of title was earlier settled inter se between the parties. It is also not the case of the Gram Panchayat that the judgment rendered in the civil suit filed earlier was obtained by fraud or by collusion. In this behalf, reference may be made to the decision rendered by the Apex Court in Gram Panchayat of village Naulakha v. Ujagar Singh and others 2000 (2) PLJ 596.Learned counsel for the respondent Gram Panchayat has not been able to satisfy us that land described as “jumla mustarka malkan” falls in any of the clauses of section 2(g) of the Common Lands Act, extracted hereinabove. An application can be filed under section 7 of the Village Common Lands Act, only in respect of land which falls within the definition of “shamilat deh” under section 2(g), referred to above. Accordingly, we find merit in both the submissions advanced by the learned counsel for the petitioner even on the second issue. In view of the above, CWP Nos. 1823 of 2007, 1824 of 2007, 1826 of 2007, 1827 of 2007, 1830 of 2007 and 1833 of 2007, are also liable to be allowed, as it is not disputed that the factual/legal position in all these issues is similar. All the 13 Civil Writ Petitions, referred to in the openining paragraph of the instant order, are allowed for the reasons recorded hereinabove. ( J.S.Khehar) Judge (Nirmaljit Kaur) Judge October 04, 2008 G.kaur/rk CWP No.1822 of 2007 9