IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 06.09.2011 C.W.P.No.13042 of 1998 Amarjit Singh and others ...Petitioners Versus State of Punjab and another ...Respondents C.W.P.No.13043 of 1998 Iqbal Singh and others ...Petitioners Versus State of Punjab and another ...Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE VIJENDER SINGH MALIK Present : Mr. S.N.Saini, Advocate, for the petitioners. Mr. A.P.S.Mann, Addl. AG, Punjab, for respondent Nos.1 & 2. Mr. Vivek K. Thakur, Advocate, for respondent No.3. HEMANT GUPTA, J. (Oral) This order shall dispose of aforesaid two writ petitions challenging the order dated 10.07.1998, whereby the proceedings for delivery of possession in favour of the petitioners were annulled on the ground that the land in dispute is shamlat and the possession thereof could not have been delivered to the petitioner. However, for facility of reference, the facts are taken from CWP No.13042 of 1998. It is the case of the petitioners that petitioner Nos.1 to 8 and petitioner Nos.1 to 7 & 9 have purchased land measuring 255 Kanals 9 CWP No.13042 of 1998 (O&M) Marlas and 105 Kanals 0 Marlas in Village Ucha, Hadbast No.85, Tehsil and District Kapurthala from Balwant Lal son of Ishwar Dass and Vishnu Mal son of Nathar Mal respectively vide two sale deeds dated 13.08.1997. Balwant Lal and Vishnu Mal were allotted the land on 03.12.1981 and 10.12.1984 respectively by Tehsildar-cum-Managing Officer, Kapurthala. It is pointed out that subsequently in a judgment reported as Gram Panchayat of Village Jamalpur Vs. Malwinder Singh and others AIR 1985 SC 1394, the Hon’ble Supreme Court has held that the share of muslim evacuees in the shamlat will not vest with the custodian and will continue to be shamlat deh. In view of the said judgment, the dispute regarding title of its vendors arose. But the State of Punjab promulgated Punjab Act No.8 of 1995 amending Punjab Village Common Lands (Regulation) Act, 1961, which protects the transfer made prior to the decision of the Hon’ble Supreme Court. Section 2(g)(iia) reads as under: “2. Definitions – In this Act, unless the context otherwise requires – xxx xxx xxx (g) “shamilat deh” includes – xxx xxx xxx (ii-a) was shamilat deh, but, has been allotted on quassi-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 July, 1985” The legality of such amendment was challenged before this Court. A Division of this Court in a judgment reported as Gram Panchayat of Village Kum Kalan Vs. The State of Punjab and others 2010 (3) RCR (Civil) 729 has upheld the validity of the Statute. 2 CWP No.13042 of 1998 (O&M) The petitioners have moved C.M.No.15957 of 2010 for decision of the writ petition in terms of the aforesaid judgment of this Court. In reply, it is pointed out by the Tehsildar (Sales), Kapurthala that the land was allotted to Balwant Lal and Vishnu Mal on 03.12.1981 and 10.12.1984 respectively, but the symbolic possession of the said land was delivered on 09.08.1997. It is further pointed out that the land in question is in the ownership of Gram Sabha as shamlat deh Hasab Rasad Khewat ever since the consolidation proceedings. Mr. Thakur, learned counsel for respondent No.3, has vehemently argued that the allotment of land in the years 1981 and 1984 is actuated by fraud and misrepresentation and that the proceedings for recovery of possession were completed soon after the land is said to have been purchased by the petitioners, but after more than 10 years of the alleged allotment. Having heard learned counsel for the parties, we find that on the basis of the record as on today, the allotment in favour of the vendors of the petitioners was made prior to 09.07.1985. Such allotment is protected by virtue of amendment inserted vide Punjab Act No.8 of 1995. However, the question whether the allotment is actuated by fraud or misrepresentation is not the question, which can be examined in the present writ petitions. Therefore, it shall be open to the Panchayat or such other competent authority to take such remedy as is permissible in respect of allotments in favour of the vendors of the petitioners as ineffective on any legally permissible grounds, but till such time the allotments are set aside, it cannot be said that the sales in favour of the petitioners are not protected by the aforesaid Act. 3 CWP No.13042 of 1998 (O&M) The sales effected prior to the judgment in Malwinder Singh’s case (supra) have been protected by virtue of amendment inserted vide Punjab Act No.8 of 1995. Since the vendors of the petitioners have been allotted land prior to 09.07.1985 i.e. the date of judgment in Malwinder Singh’s case (supra), therefore, the petitioners being vendee of vendors, whose allotment is protected, are entitled to the possession of the land so purchased. In view of the above, both the writ petitions are allowed and the orders dated 10.07.2008 are set aside. It shall be open to the petitioners to take possession of the land in accordance with law subject to the liberty granted above. (HEMANT GUPTA) JUDGE 06.09.2011 (VIJENDER SINGH MALIK) Vimal JUDGE 4