CWP No. 7926 of 2010 and another connected case 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 22.11.2010 CWP No. 7926 of 2010 Joginder Singh and others ….. PETITIONERS VERSUS State of Punjab and others ….. RESPONDENTS CWP No. 12039 of 2010 Rajpal Singh and others ….. PETITIONERS VERSUS State of Punjab and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. H.S.Ghuman, Advocate, for the petitioners. Mr. Manohar Lall, Addl. A.G. Punjab. Mr. V.S.Mann, Advocate, for respondent No. 4. *** Jasbir Singh, J. (Oral) This order will dispose of CWP No. 7926 of 2010 titled as Joginder Singh and others vs. State of Punjab and others and CWP No. 12039 of 2010 titled as Rajpal Singh and others vs. State of Punjab and others. To dictate order, the facts are being taken from CWP No. 7926 of 2010. CWP No. 7926 of 2010 and another connected case 2 This writ petition has been filed with a prayer to quash order dated 14.08.2008 (P-6) dismissing an application filed by the petitioners under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (in short 'the Act'). Further challenge laid, is to an order passed in appeal filed by the petitioners on 22.01.2010 (P-8). Heard counsel for the parties. By making reference to a document/Annexure P-3, Sh. Ghuman has vehemently contended that land measuring 42 Bighas 6 Biswas was withdrawn by imposing a pro-rata cut on the petitioners, at the time of consolidation proceedings and put in the common pool. That land was not earmarked for any common purpose. It was withdrawn in excess, to the requirement of land, to be used for common purposes of the village. By stating that the petitioners had migrated from Pakistan as such, they were entitled to get share in the shamlat deh land of the village, it was prayed that the impugned orders be set aside. Prayer made is opposed by counsel for the respondents by stating that the land is the ownership of the Gram Panchayat and it has rightly been so held by the authorities below. Record reveals that the petitioners filed an application under Section 11 of the Act claiming ownership of agricultural land measuring 42 Bighas and 6 Biswas. It was their case that above-said land has wrongly been mutated in the name of Gram Panchayat on the basis of a letter issued by the State of Punjab in the year 1957. It is specific stand of the petitioners that the land was withdrawn from them during consolidation proceedings by imposing a pro-rata cut. If that is so, we feel that orders passed by the authorities are perfectly justified. If excess land has been withdrawn at the time of CWP No. 7926 of 2010 and another connected case 3 consolidation, to be used for the common purposes in the village, the same can be challenged by invoking the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short' the 1948 Act'), The 1948 Act provides that land can be deducted from the individual land holding of the right holders to use it for common purposes in the village. As per the provisions of Section 23-A of the 1948 Act, management of land earmarked for common purposes shall vest in the Gram Panchayat. The provision reads thus:- “23 A. Management and control of lands for common purposes to vest in Panchayats or State Government.- As soon as a scheme comes into force, the management and control of all lands assigned or reserved for common purposes of the village under Section 18,- (a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government; and (b) in the case of any other common purpose, shall vest in the Panchayat of that village; and the State Government or the Panchayat, as the case may be, shall be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interests of the owners of such lands shall stand modified and extinguished accordingly: Provided that in the case of land assigned or CWP No. 7926 of 2010 and another connected case 4 reserved for the extension of village abadi or manure pits for the proprietors and non-proprietors of the village, such land shall vest in the proprietors and non-proprietors to whom it is given under the scheme of consolidation”“ As per Rule 16 (ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, the land, which has been earmarked for common purpose, shall remain ownership of the right holders and the Gram Panchayat is competent to manage that land. Not only as above, in the present case, even if we assume that the petitioners are the co-owners in the shamlat deh land, which is ownership of the Gram Panchayat, relief cannot be granted to them. It is not case of the petitioners that when they migrated from Pakistan, land was not allotted to them as per their entitlement and there was some deficiency, so far as their verified claim is concerned. In the order passed by the Commissioner in appeal, it has been observed as under:- “ After considering the written arguments submitted by the counsel and perusal of the case file, I have come to the conclusion that initially the status of land in dispute was 'Shamlat Deh Hasab Hisas Jail'. In view of the orders of the Government dated 11.06.1957, the land has been transferred in favour of Gram Panchayat and the same has not been challenged in the competent court, either by the appellants or by the villagers within the stipulated period of time and the same has become conclusive. Hon'ble Punjab and Haryana CWP No. 7926 of 2010 and another connected case 5 High Court has passed in its judgment titled as Shisha Singh vs. State of Punjab and others, cited as 2005 (4) R.C.R. (Civil) that the land which has been transferred in the name of Gram Panchayat and such transfer has not been challenged in the competent court within a stipulated time, such transfer becomes final and the title of the land shall vest with the Gram Panchayat and this will prevent any person from challenging the title of the Gram Panchayat as being violative of Section 116 of Indian Evidence Act, 1870. The action of the appellants to challenge the title after a gap of about 55 years is not legally sustainable. If they had any objection, it should have been raised in time before the competent court, but the same was not done. The land in dispute is covered under Section 2 (g) of the Punjab Village Common Lands (Regulation) Act, 1961 and vests with Gram Panchayat and the appellants are illegal occupants. The appellants have failed to prove that the land in dispute was in their exclusive possession before 26.01.1950. Therefore, the order of the lower court is upheld and the appeal of the appellants is dismissed.” A finding has been given that the land, which was claimed by the petitioners, is the ownership of the Gram Panchayat. It is specific case of the petitioners that shamlat deh land was left in the village by those right holders, who had migrated to Pakistan. The Hon'ble Supreme Court in the case of Gram Panchayat of Village Jamalpur vs. Malwinder Singh and others, AIR 1985 Supreme Court 1394, have specifically held that the shamlat deh CWP No. 7926 of 2010 and another connected case 6 land left in a village by the persons migrated to Pakistan, shall vest in the Gram Panchayat. We feel that in terms of order passed by the Hon'ble Supreme Court, finding given by the authorities below is perfectly justified. No case is made out for interference. Dismissed. ( JASBIR SINGH ) JUDGE ( AUGUSTINE GEORGE MASIH ) JUDGE November 22, 2010 pj CWP No. 7926 of 2010 and another connected case 7