IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No. 935 of 2011 (O&M) Date of Decision: December 09, 2011 Sarbjit Singh and others. …Appellants Versus Director, Rural Development & Panchayat Department, Punjab and others. …Respondents CORAM: HON’BLE MR. JUSTICE SATISH KUMAR MITTAL, HON’BLE MR. JUSTICE PARAMJEET SINGH. Present: Mr. Ashok Singla, Advocate, for the appellants. Mr. S.S. Salar, Advocate, for the caveator/respondent No.5. Paramjeet Singh, J. Present Letters Patent Appeal has been directed against judgment dated 24.10.2009 passed by the learned Single Judge whereby order dated 03.06.2005 passed by the Commissioner under Section 11(2) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the 1961 Act) has been upheld and the Gram Panchayat has been declared to be owner of the land in dispute. The brief facts of the case are that the Gram Panchayat, Village Phool Khurd, Tehsil and District Ropar, filed a LPA No. 935 of 2011 petition seeking declaration to the effect that the Gram Panchayat is owner in possession of the land measuring 150 Kanals 16 Marlas as mentioned in the head note of the said petition situated in the revenue limits of Village Phool Khurd, Tehsil and District Rupnagar. The said petition was filed against the Secretary, Department of Revenue, Punjab and the State of Punjab through Collector, Rupnagar. The father of the appellants was not impleaded as a party and he was subsequently impleaded as a party. The claim of the appellants is that they are proprietors of the village and are in possession of the land. Vide order dated 18.10.1994 (Annexure P/6), the Collector declared the Gram Panchayat (respondent No.5) as owner in possession of the land in question. A resident of the village, namely, Ajit Singh claiming himself to be the proprietor of the village and in possession of some area, assailed order dated 18.10.1994 (Annexure P/6) by filing an appeal before the Commissioner. The appeal filed by Ajit Singh was accepted vide order dated 18.09.1996 (Annexure P/7) and the case was remanded to the Collector for a fresh decision as Ajit Singh was the Khewatdar and he was required to be heard in the matter. After the remand order, the father of the appellants, namely, Mohinder Singh filed an application (Annexure P/8) 2 LPA No. 935 of 2011 under Order 1 Rule 10 CPC for impleading him as a party. It was one of the grounds that the Gram Panchayat is in connivance with the respondents in the petition under Section 11 of 1961 Act. It was pleaded that land measuring 100 Kanals 8 Marlas was owned and possessed by the father of the appellants Mohinder Singh since time immemorial i.e. even prior to 1950. Therefore, Mohinder Singh was impleaded as a party and he contested the case. The Collector vide order dated 05.03.2003 (Annexure P/11) held that the suit land belonged to Provincial Government and that Provincial Government was the owner of the land and entry of the Maqbooja Shamilat Deh was wrong. The Gram Panchayat filed an appeal against order dated 05.03.2003 (Annexure P/11). The Commissioner vide order dated 03.06.2005 (Annexure P/13) allowed the appeal of the Gram Panchayat and held that the Gram Panchayat is owner in possession of the disputed land. Besides this, it was also held that the appellants came in illegal possession of the disputed land measuring 153 kanals 16 Marlas in the year 1984-85. They had failed to prove as to in what capacity they have come into possession from the year 1984-85. It needs to be noticed here that certain land out of the land in dispute was acquired by the State Government vide 3 LPA No. 935 of 2011 Notification dated 12.07.1963. However, the State Government released the land by denotifying the acquired land vide Notification dated 18/19.10.2006 (Annexure R-5/3). Another important fact to be noticed here is that as per the Khatauni Pamaish for the year 1951-52 (Annexure P/1), the land has been described in the ownership column as “Shamilat Deh Hasab Rasad Arazi Khewat” and in the cultivation column, it is recorded as “Maqbooza Malkan”. In the Khatauni Pamaish, the old and new khasra numbers have been described. It is also important to mention here that in the jamabandi for the year 1951-52, for the land mentioned in Khewat No. 94, Mutation No. 503 was sanctioned on 03.12.1955 (Annexure P/15) in favour of Panchayat Deh. Subsequently the entry was changed vide mutation No. 37 from Gram Panchayat to “Shamilat Deh Hasab Rasad Zar Khewat”. Another Mutation No. 117 was also entered changing the entry from Shamilat Deh Hasab Rasad Zar Khewat to the Provincial Government. These entries find mentioned in the Jamabandi/Misal Haqiat for the year 1960-61 (Annexure P/2). On the basis of those entries and remarks in favour of the “Shamilat Deh Hasab Rasad Zar Khewat” it is claimed that it would mean that the land in question is the ownership of the proprietary body. 4 LPA No. 935 of 2011 We have heard learned counsel for the appellants and have given thoughtful consideration to the contentions raised by the learned counsel for the parties. The first contention of the learned counsel for the appellants is that the learned Single Judge has seriously erred in construing the meaning of word “Shamilat Deh” and words “Shamilat Deh Hasab Rasad Araji Khewat” and submitted that the impugned order is not sustainable in the eyes of law. It is further submitted by the learned counsel for the appellants that bifurcating a single pharse in the revenue record i.e. “Shamilat Deh Hasab Rasad Araji Khewat” into two parts – (1) Shamilat Deh and (2) Hasab Rasad Araji Khewat, has resulted into miscarriage of justice. According to learned counsel, the pharse “Shamilat Deh Hasab Rasad Araji Khewat” is a single entry with regard to the ownership. So, is recorded in the revenue record and this is required to be read as a whole and its meaning could not have been drawn by splitting this complete phrase. We do not agree with the arguments raised by the learned counsel for the appellants. In this regard, the learned Single Judge has observed as under:- “A perusal of the above shows that clause (1) of Section 2(g) envisages that Shamilat Deh includes land described in the revenue records as ‘Shamilat Deh’ excluding ‘Abadi Deh’. Section 2(g) in fact is in 5 LPA No. 935 of 2011 two parts. Clauses (1) to (5) relates to lands which are included in ‘Shamilat Deh’ and Clauses (ii) to (ix) relates to lands which do not include or are excluded from the definition of ‘Shamilat Deh’. Section 4(1)(a) of the 1961 Act provides for vesting of rights in Panchayat and non-proprietors. It is provided that notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and interest whatever in the land which is included in ‘Shamilat Deh’ of any village and which has not vested in a Panchayat under the ‘Shamilat law’ shall at the commencement of this Act, vest in a Panchayat constituted for such village and where no such Panchayat has been constituted for such village, vest in the Panchayat on such date as a Panchayat having jurisdiction over that village is constituted. Therefore, it is in terms of Section 4(1)(a) of the 1961 Act that the land which is included in the definition of ‘Shamilat Deh’ of any village, is to vest in the Panchayat on the commencement of the 1961 Act. The 1961 Act came into effect from the date of publication in the Punjab Govt Gazette (extraordinary) Legislative Supplement Part-I dated 4.5.1961. Therefore, such land which is ‘Shamilat deh’ is to vest in the Gram Panchayat. The contention of Mr Singla that the same is not included in any ‘Shamilat law’, thus, is not tenable as on the commencement of the Act i.e. on 4.5.1961, the land is recorded as ‘Shamilat Deh’”. 6 LPA No. 935 of 2011 Further contention of the learned counsel for the appellants that the land recorded as “Shamilat Deh Hasab Rasad Arazi Khewat” does not vest in the Panchayat has also been repelled by the learned Single Judge by recording the following finding:- “It may be noticed that the land which is recorded as ‘Shamilat Deh Hasab Rasad Arazi Khewat’ in fact is ‘Shamilat Deh’. In terms of Section 2(g), the said land which is recorded as ‘Shamilat Deh’ vests in the Panchayat in terms of Section 4(1)(a) of the 1961 Act. The subsequent entry of ‘Hasab Rasad Arazi Khewat’ is only for the purpose of the share of the proprietors in the ‘Shamilat land’ or the common land. In Jaswant Singh and ors v. State of Punjab and ors 1966 PLR 106, a Division Bench of this Court explained the term ‘Hasab Rasad Arazi Khewat’. It was held that in a village in which there is no fluctuation of revenue assessment, the expression “Hasab Rasad Khewat” means “according to the revenue assessed on the holding”, but in other villages in which either the revenue fluctuates for some reason or the village administration papers say so, in all those cases the expression is to be read meaning “according to the area of holdings” or “a division in proportion of area”. In Mela Vijay Dashmi Sabha v. Amar Nath and another 1995 (3) RRR 584, it was held that “Hasab Rasad Zare Khewat” means where the land was carved out during consolidation of holding and entry in the 7 LPA No. 935 of 2011 revenue records reads as “Hasab Rasad Zare Khewat”, and there is no fluctuation of revenue assessment, this entry means ‘according to the area of the holdings’ or ‘a division in proportion or area’. The share of the proprietors in this joint land is to the ratio of their area in the revenue estate. Therefore, the entries as ‘Hasab Rasad Arazi Khewat’, in fact only mean that the proprietors of the village have a share in the ‘Shamilat land’ according to the area of their holdings. This share of the proprietors was divisible amongst them earlier to 26.1.1950. Section 2(g)(iii) of the 1961 Act which is amongst the clauses which relates to land, which is excluded from ‘Shamilat Deh’ envisages that ‘Shamilat Deh’ does not include land which has been partitioned or brought under cultivation by individual land holders before 26.1.1950. Clause (viii) of Section 2(g) also may be noticed, which envisages that ‘Shamilat Deh’ does not include land which was ‘Shamilat Deh’ and was assessed to land revenue and has been in individual cultivating possession of the co-sharers not being in excess of their respective shares in such ‘Shamilat Deh’ on or before 26.1.1950. Therefore, it is in consequence of the 1961 Act which has come into effect on 4.5.1961 the land which is recorded as ‘Shamilat Deh’ is to vest in the Gram Panchayat in terms of Section 4(1)(a) of the 1961 Act. In order to exclude it from its definition, it is to be shown by the proprietors who claim right to such land that it has been partitioned 8 LPA No. 935 of 2011 and brought under cultivation by individual land holders before 26.1.1950. As has already been noticed, the father of the petitioners namely Mohinder Singh is shown in cultivating possession only from the Jamabandi for the year 1984-85 (P3), which is much after the stipulated date of 26.1.1950. In the earlier revenue records, ‘Maqbooza Malkan’ are recorded in ownership In fact, none of the proprietors of the village can be said to be in cultivating possession of the land as in the revenue records, the land has been recorded as ‘Gair Mumkin River’ and no one can possibly be in cultivating possession of such land in which there is a river. In the Jamabandi for the year 1984-85 (P3), the land is recorded as ‘Sailab’. In fact, ‘Sailab’ land was earlier excluded from the definition of ‘Shamilat Deh’ in terms of clause (i) of Section 2(g) of the 1961 Act. However, the same has been omitted vide Punjab Act 19 of 1976. As such, the petitioners or their predecessor-in-interest – Mohinder Singh were never in cultivating possession either in consequence of the partition of the land or in individual cultivating possession so as to come within clause (iii) or clause (viii) of Section 2(g) of the 1961 Act and consequently excluded from the definition of ‘Shamilat Deh’. In any case, the petitioners cannot be said to be in cultivating possession as ‘river’ land cannot be cultivated.” We are in agreement with the aforesaid observation and finding recorded by the learned Single Judge. It is admitted 9 LPA No. 935 of 2011 by the learned counsel for the appellants that before 01.11.1956, District Ropar was part of District Ambala which is the date fixed in Section 2(h) of the 1961 Act which reads as under:- “2(h) ‘Shamilat Law’ means. – (i) in relation to land situated in the territory which immediately before the 1st November 1956, was comprised in State of Punjab, the Punjab Village Common Lands (Regulation) Act 1953, or (ii) in relation to land situated in territory which immediately before the 1st November 1956, was comprised in State of Patiala and East Punjab States Union : the Pepsu Village Common Lands (Regulation) Act 1954.” In view of the above provisions, at the relevant time, the Punjab Village Common Lands (Regulation) Act, 1953 was applicable with regard to the properties in question. We deem it appropriate to reproduce Sections 2(g) and 4 of 1961 Act:- “Section 2(g) “Shamilat deh” includes :- (1) lands described in the revenue records as Shamilat deh excluding abadi deh; (2) Shamilat tikkas; (3) lands described in the revenue records as Shamilat tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of village; 10 LPA No. 935 of 2011 (4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds situated 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; but does not include land which --- (i) ---- (ii) has been allotted on quasi-permanent basis to a displaced person; (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 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 recording in the jamabandi or is supported by a valid deed and is not in excess of the sharer in the Shamilat Deh, (v) is described in the revenue records as Shamilat, taraf, patties, pannas, and thola and not used according to revenue records for the benefit of 11 LPA No. 935 of 2011 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-sharers 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 thereof, immediately before the commencement of this Act.” Section 4:- “4. Vesting of rights in Panchayat and non- proprietors – (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in the land – (a) which is included in the shamilat deh of any village and which has not vested in a Panchayat under the shamilat law shall, at the commencement of this Act, vest in a Panchayat constituted for such village, and where no such Panchayat has been constituted for such village, 12 LPA No. 935 of 2011 vest in the Panchayat on such date as a Panchayat having jurisdiction over that village is constituted; (b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non-proprietor, shall, on the commencement of shamilat law, be deemed to have been vested in such non-proprietor. (2) Any land which is vested in a Panchayat under the shamilat law shall be deemed to have been vested in the Panchayat under this Act. (3) Nothing contained in clause (a) of sub-section (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the – (i) existing rights, title or interests of persons, who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Muqarrirdars; (ii) rights of persons in cultivating possession of shamilat deh, for more than twelve years [immediately preceding the commencement of this Act] without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon; (iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.” 13 LPA No. 935 of 2011 The cumulative reading of Section 2(g), as well as Section 4 of the Act makes it clear that Section 2(g) is principally divided in two parts i.e. Clauses (1) to (5) which relate to lands which are included in “Shamilat Deh” and Clauses (i) to (ix) relate to lands which do not include or are excluded from the definition of “Shamilat Deh”. It would be important to note here that “Shamilat Deh” does not include the land which comes under the exceptions mentioned in Clause (i) to (ix). The most important clauses (iii) and (viii) are in the nature of exceptions which exclude the land from the definition of “Shamilat Deh”. Section 4(1)(a) of the Act provides for vesting of rights in Panchayat and non-proprietor. It is provided that notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and interest whatever in the land which is included in ‘Shamilat Deh’ of any village and which has not vested in a Panchayat under the ‘Shamilat law’ shall at the commencement of this Act, vest in a Panchayat constituted for such village and where no such Panchayat has been constituted for such village, vest in the Panchayat on such date as a Panchayat having jurisdiction over that village is constituted. 14 LPA No. 935 of 2011 In view of Section 4(1)(a) of 1961 Act, the land which is included in the definition of “Shamilat Deh” of any village is to vest in Panchayat on the commencement of the Act. The Act came into effect on 04.05.1961, therefore, such land which is described as “Shamilat Deh” is to vest in the Gram Panchayat. Therefore, contention of the learned counsel for the appellants that such land is not included in any Shamilat Deh on 04.05.1961 the date of commencement is not sustainable, hence rejected. So far as the contention of the learned counsel for the appellants with regard to splitting of the phrase “Shamilat Deh Hasab Rasad Arazi Khewat” is concerned, it only means that the proprietors of the village have a share in the Shamilat land according to their shares in the total holdings of the village. This share was devisable amongst them prior to 26.01.1950 as described in Section 2(g)(iii) of 1961 Act which is in the nature of exceptions mentioned in the Act. In this clause, it is specifically mentioned that Shamilat deh does not include land which has been partitioned or brought under cultivation by individual landholders prior to 26.01.1950. Another exception is Clause (viii) of Section 2(g) of 1961 Act which also relates to the land which is not included in the “Shamilat Deh”. As per this Clause, Shamilat deh does not 15 LPA No. 935 of 2011 include land which was Shamilat deh and was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such Shamilat deh on or before 26.01.1950. The father of the appellants, Mohinder Singh, for the first time came into cultivating possession only in the year 1984- 85 as described in the jamabandi for the year 1984-85 (Annexure P/3). The said possession of the appellants and their father had commenced much after the stipulated date i.e. 26.01.1950. It is pertinent to mention here that earlier revenue record clearly depicts the possession of Maqbooza Malkaan. There is no iota of evidence on record that any of the proprietors of the village was in individual cultivating possession as per the revenue record prior to cut of date i.e. 26.01.1950, rather, the land has been described in the revenue record as “Gair Mumkin River”. There is no question of cultivating the land under river. In the jamabandi for the year 1984-85 (Annexure P/3), the land is described as “Sailab”. In fact, Sailab land was earlier excluded from the definition of “Shamilat Deh” in terms of clause (i) of Section 2(g) of 1961 Act. However, the same was omitted vide Punjab Act No.19 of 1976. So, the predecessor-in-interest of the appellants i.e. Mohinder Singh never came into cultivating possession either as a consequence of partition or otherwise in 16 LPA No. 935 of 2011 individual cultivating possession so as to be covered under the exception clause i.e. Clause (iii) or (viii) of Section 2(g) of 1961 Act to prove that land in question is excluded from the definition of Shamilat Deh. On the specific asking of this Court, learned counsel for the appellants has categorically stated that he is only basing his claim on the interpretation of phrase “Shamilat Deh Hasab Rasad Arazi Khewat”, this land does not come within the definition of “Shamilat Deh”. He does not press that his case falls under the Exceptions clause i.e. (iii) or (viii) of Section 2(g) of 1961 Act. We hold that as a consequence of 1961 Act which came into force on 04.05.1961 that land which was recorded as “Shamilat Deh” vests in the Gram Panchayat in view of Section 4 (1)(a) of 1961 Act. It is necessary for the proprietor to claim his right over such land and also to show that it was partitioned and brought under cultivation by individual right holders before 26.01.1950. The contention of the learned counsel for the appellants is that land vests in proprietors in view of Section 4 (3)(ii) of the Act. Clause (ii) of Section 4(3) of the Act will be attracted only in the following three conditions :- (i) person must be cultivating land which is part of Shamilat Deh, 17 LPA No. 935 of 2011 (ii) he should be cultivating such land for more than a period of 12 years immediately preceding the commencement of the Act, (iii) he should be cultivating such land without payment of rent or payment of charges not exceeding land revenue and cesses. Learned counsel for the appellants failed to substantiate the above conditions, hence, this contention is also rejected. Learned counsel for the appellants did not raise