IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.9920 of 1989 Date of decision:12.05.2010 Nirmal Singh and others ….Petitioners versus Additional Director of Panchayats, Punjab, Chandigarh and another. …Respondents II. Civil Writ Petition No.10300 of 1989 Gurdev Singh ….Petitioner versus Joint Director Panchayats Punjab, Chandigarh and another. …Respondents III. Civil Writ Petition No.10881 of 1989 Shamsher Singh ….Petitioner versus Additional Director of Panchayats, Punjab, Chandigarh and another. …Respondents IV. Civil Writ Petition No.10882 of 1989 Balwant Singh (deceased) through his L.Rs. ….Petitioner versus Additional Director of Panchayats, Punjab, Chandigarh and another. …Respondents V. Civil Writ Petition No.11102 of 1989 Sucha Singh ….Petitioner versus Additional Director of Panchayats, Punjab, Chandigarh and another. …Respondents Civil Writ Petition No.9920 of 1989 - 2 - VI. Civil Writ Petition No.10160 of 1990 Dalip Singh (deceased) through his L.Rs and others ….Petitioners versus Additional Director of Panchayats, Punjab, Chandigarh and another. …Respondents VII. Civil Writ Petition No.10175 of 1990 Dalip Singh (deceased) through his L.Rs and others ….Petitioners versus Additional Director of Panchayats, Punjab, Chandigarh and another. …Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ------ Present: Mr. G.S.Nagra, Advocate, for the petitioners. (in CWP No.9920 of 1989) Mr. G.S.Dhaliwal, Advocate, for the petitioner (in CWP No.10300 of 1989) Mr. Gurcharan Singh, Advocate, for the petitioners. (in CWP Nos.10881,10882, 11102 of 1989, and CWP Nos.10160,10175 of 1990) Mr. Manohar Lall, Additional Advocate General, Punjab, as Amicus Curiae. ----- 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ----- K.Kannan, J 1. All the above writ petitions contain the challenge to the orders passed by the Assistant Director (Panchayats), Chandigarh, exercising powers of the Commissioner under the Punjab Village Civil Writ Petition No.9920 of 1989 - 3 - Common Lands Regulations Act of 1961 (hereinafter called 'the Act'). The authority was disposing also the cross-appeals filed by private individuals in the Gram Panchayat Saifalpur in so far as the order of the Collector's orders rejected the claim to ownership of a portion of the properties. The order under challenge before the Commissioner had been earlier issued by the Collector while disposing of the petition under Section 11 of the Act. By the first order of the Collector, out of an extent of 47 kanals and14 marlas, 24 kanals of extent of lands in various khasra numbers had been treated as shamlat deh and the balance of 123 kanals and 14 marlas had been treated as properties held by various claimants as their private lands. In the appeal preferred before the Commissioner, the orders of the Collector had been set aside to the extent to which the private owners' rights had been recognized and they were also held to vest in the panchayats. On a finding that all the properties were shamlat deh, the writ petitions are, therefore, at the instance of all the private individuals, whose respective claims to the properties had been wholly rejected. I have heard the counsel for the respective petitioners as well as the counsel Shri Manohar Lall, Amicus Curiae, to present the contentions raised on behalf of the panchayat. 2. The contention on behalf of the writ petitioners is that the Collector had correctly considered the effect of the entries in the jamabandi for the years 1951, 1952 onwards, where under Column No.4 against the entry of name and description of owner, it had been entered as shamlat deh, Hasab Hissas Paimana Haqiat. The expressions in vernacular is explained by the learned counsel as meaning 'properties of Civil Writ Petition No.9920 of 1989 - 4 - the proprietors as per their share'. Against Column No.5 describing the name and description of the cultivator, it has been entered that the owners are in possession. The learned counsel for some of the petitioners would urge that the jamabandi entries are normally prepared 4 years earlier and, therefore, the entry relating to the year 1951-52 must be understood as the status on land 4 years earlier that is, prior to 1950 and if the private individuals had been shown to be persons in possession, it should only be held that the property had vested with the panchayat. It has also been contended by the learned counsel that as per the definition of the expression 'shamlat deh' as contained under Section 2(g), any land in a village described as banjar qadim and used for common purpose of the village according to the revenue records would also be shamlat deh, but in this case, since the user for common purpose had not been established, the property described as banzar qadim must be taken as not coming within the category of shamlat deh. 3.. While the jamabandi entries in all the writ petitions pertained only to year after 1951, 1952, the learned counsel appearing for the petitioner in Civil Writ Petition No.10881 of 1989 would refer to the jamabandi entries for the year 1960-1961 Bikarami Samat and say that the word 'Bikarami' related to the reckoning of the year as per the local calendar which corresponds to Gregorian Calendar year 1903/1904. In the above writ petition, the entry in column No.4 refers to “Shamlat Deh according to scale of Ownership rights as per shajra Nasab”. The same document also refers in column No.13 under “remarks” that the mutation Nos.3 & 4 pertained to “disputed ownership”. All the counsel appearing Civil Writ Petition No.9920 of 1989 - 5 - for the petitioners make a ground of the fact that the panchayat had not established its ownership or possession at any time but the Commissioner had wrongly accepted the contention raised on behalf of the panchayat that it had been periodically leasing out the properties for common use of the villages without an iota of proof for the same. The learned counsel would urge that the only properties that are used for the common purposes of the village and described as banjar qadim would qualify for a categorization of shamlat deh and similarly only shamilat, Tarafs, Pattis, Pannas and Tholas and used according to revenue records for the benefit of the village community could to be included in shamlat deh and that the Commissioner had wrongly applied the definition under Section 2(g)(1) for coming to the conclusion that it was shamlat deh. 4. The learned counsel Shri Manohar Lall, Amicus Curiae, urged that the Commissioner correctly applied the definition of the expression under Section 2(g) as falling within Clause (1) and if the jamabandi had described the property to fall within the revenue entry shamlat deh excluding abadi deh, unless the possession of any of the persons as proprietors could be shown for the year prior to 26.01.1950, the property must only be taken as vesting in the panchayat. The governing provision shall be only to Clause 2(g)(1) and not to Clause 2 (g)(3) or 2(g)(5) and being mutually exclusive of the other classifications, the latter clauses shall not applied. The learned counsel Shri Manohar Lall also points out that the Punjab Village Common Lands (Regulations) Act of 1961 replaced the Act called the Punjab Village Common Lands (Regulation) Act of 1953 and Pepsu Village Civil Writ Petition No.9920 of 1989 - 6 - Common Lands (Regulations) Act of 1954 after the merger of Pepsu with Punjab. The earlier Acts had applied to all transactions after 26.01.1950 and the date therefore obtained relevance that if none of the private parties could show their possession and the jamabandi entry referred to the properties as shamlat deh, it was irrelevant that the jamabandi entries also contained reference to the property being in the possession of the proprietors as per their share. 5. Both the counsel referred extensively to the decisions of this Court and the Hon'ble Supreme Court in support of the respective contentions. The learned counsel Mr. G.S.Nagra refers to a decision in Joginder Singh and others Versus The Director, Consolidation of Holdings Punjab and others-1988 PLJ 535 in support of his contention that the land described in the records-of-rights prior to consolidation as banjar and banjar qadim in individual cultivating possession of Khewatdars and in column of cultivation recorded as in possession of Malkan (owners) while in column pertaining to assessment recorded as Bila Lagan Bawajah Kabza Sab Ka Hissedari (without payment of rent being in possession of co-sharers) does not fall within definition of Shamilat Deh in possession in Section 2(g). The learned counsel also refers to a still later ruling in Gram Panchayat Gram Sabha Village Ugani, Tehsil Rajpura, District Patiala Versus State of Punjab-1997(3) RCR (Civil) 79, which held that if the respondent is shown as owner before 1950 of the land recorded as Shamlat Deh Hasab Hissas Palmana Malkiat Mudarqa Sajar Nasar Bandobasti, it does not vest with the panchayat ,since such terms themselves do not mean that the land vests Civil Writ Petition No.9920 of 1989 - 7 - in Gram Panchayat as shamlat deh. In such circumstances it must only be taken that the gram panchayat failed to prove that the land was shamlet deh vested in it. He also refers to the fact that yet another person in the same village in relation to another property by name Mehar Singh had laid a claim to the property which was also claimed by the very same panchayat as vesting in the panchayat. But the Commissioner, while disposing of an appeal filed by the Gram Panchayat, held that the land had not at any time been leased by the gram panchayat and that it had also not proved that the land had been given to it by the Consolidation Department. Finding that the private individual was in possession of the property prior to 26.01.1950, he had rejected the claim of the panchayat on the ground that the land in the nature of shamlet deh Hasab Hissas Palmana Malkiat could not vest in the Panchayat. This decision was also upheld by this court in Civil Writ Petition No.8094 of 1996 when the writ petition filed by the Gram Panchayat was dismissed. This decision of the High Court must be immediately seen to have been merely dismissed summarily without any reasoning but the learned counsel would still rely on it to show that at the previous time when the panchayat was trying to contend that yet another item of property in the same village Saifalpur as having vested in it and that it had been leasing out the property for the benefit of the villagers, it had been rejected by the competent authority and affirmed by the High Court. 5. The learned counsel Shri Gurcharan Singh has referred to several decisions to contend that the mere description of a property as shamlat deh in jamabandi would not vest the property with the panchayat Civil Writ Petition No.9920 of 1989 - 8 - when it is accompanied with entry of possession of proprietors on transfers prior to 26.01.1950. The learned counsel refers to a Full Bench decision of this Court in Gram Sabha Sadhraur Versus Baldev Singh and others-1977 PLJ 276, that dealt with the relative scope of sub- clauses (3) and (5) of Section 2(g) of the Punjab Village Common Lands (Regulation) Act of 1961. The Full Bench, answering the questions of law, which among others addressed the issue whether banjar qadim land falling in shamlat taraf or shamlat patti would be governed by sub- clause (5) of Section 2(g) or sub-clause (3) and whether the proviso after sub-clause (5) only governed this sub-clause or the previous four sub- clauses also. The Full Bench had answered the questions by affirming that sub-clause (5) being a specific provision was restricted only to lands shown as banjar qadim in revenue record and the pre-requisite before such a land could be held to be as shamlat deh to vest in gram panchayat must be to establish that according to entries in revenue record, the same was being used for common purpose of the village. Unless this conclusion was reached banjar qadim could not be held to vest in gram panchayat. Referring to the application of Section 2(g)(3), the Full Bench held that the expression “for the benefit of the village community or a part thereof” must include in its ambit not only the owners of the land of the patti or taraf concerned, but also the village community as a whole or a part thereof which would include all sections of population of the village including the landowners. The Full Bench ruled that the provisions cannot be given restricted meaning so as t confine the benefit only to the landowners and that the entries in revenue record must show Civil Writ Petition No.9920 of 1989 - 9 - that actually some benefit was being derived from the use of such land by the village community or a part thereof. A land described as banjar qadim would be included in shamlat deh if only it was used for common purposes of the village. In a subsequent judgment rendered by the Division Bench of this Court in Om Parkash Versus The Assistant Collector Ist Grade Narnaul and others-1992 PLJ 365, this Court held that the entry in jamabandi in column of ownership as shamlat deh Hisab Hissa Malkiat with the name of owner, does not show that the land was being used for common purposes but was in possession of the proprietors and a mutation sanctioned in favour of the gram panchayat could not be taken that the land vested in the gram panchayat. In Sarvshri Teja Singh Versus Gram Panchayat (Gram Sabha) Halqa Boran-1984 PLJ 17, this Court had held that before a property could be taken as falling with Section 2(g)(5), two requirements were to be fulfilled: (i) the land must be described as banjar qadim; and (ii) it should be used for common purposes. A mere fact that the land recorded as banjar qadim could not be itself sufficient to hold land as shamlat deh. 6. Shri Dhaliwal appearing for some of the petitioners also refers to several decisions to the effect of entries in jamabandi and the requirement of proof of possession of panchayat before it affirms any particular land as vesting in the panchayat as shamlat deh. In Kaka Singh versus Additional Director of Consolidation, Punjab-2001(4) RCR (Civil)14, a Division Bench of this Court held that in the absence of any record to show that the land in dispute although showed the mutation entry in favour of panchayat, it had nothing on record to show that the Civil Writ Petition No.9920 of 1989 - 10 - property was only as shamlat deh. In Bachna (died) through L.Rs Versus Gram Panchayat, Mehmoodpur Jattan and others-2005(4) RCR (Civil)789, this Court held that a Collector cannot declare the land to be vested in panchayat without there being any evidence of ownership of the panchayat. A mere assertion that the property was in its possession without any documentary evidence could not be held to be vested in the panchayat. He also refers to the decision of the Hon'ble Supreme Court in Gram Panchayat Versus Amar Singh (died) by L.Rs.-2001(4) RCR (Civil) 694, that held that the lands described in revenue records to be “in possession of the proprietors of the tholas” in their cultivating possession and use and when no commonality of purpose had been disclosed in revenue entries nor any indication that non-proprietors enjoyed the benefit of the land in any common way, it would not fall within the definition of the shamlat deh. A mere mutation entry in favour of gram panchayat with regard to land, which was consistently shown in records of rights as belonging to proprietors, would not vest the property in panchayat, said a decision of a Division Bench in Gurjant Singh and another Versus Commissioner, Ferozepur Division, Ferozepur and another-2000(2) PLJ 7. 7. All these decisions go to show that a mere classification of property as banjar qadim would not give rise to a presumption that the property as shamlat deh. These decisions are also authority to the view that the properties referred to as tarafs, pattis and tholas do not also establish their character as shamlat deh, unless it is also established that the village community or a part thereof had the benefit of such a land. Civil Writ Petition No.9920 of 1989 - 11 - To respond to these contentions, the decisions referred to by Shri Manohar Lall would obtain immediate relevance, for, in my view, the answer to this controversy involved in the writ petition lies in appreciating the revenue entries and the applicability of the relevant provision of the Act. The Hon'ble Supreme Court was typically considering a situation like what obtains in the batch of cases, in Sukhdev Singh and others Versus Gram Sabha Bari Khad and others- 1977 PLJ 150. The Hon'ble Supreme Court was considering an entry of a land recorded in jamabandi as shamlat deh which also included an entry that the land was in possession of owners as per respective shares in khewat. The Hon'ble Supreme Court held that a mere entry that a land had been in possession of owners as per their share did not detract from the nature of land as shamlat deh. The Hon'ble Supreme Court held that for the essential requirement for exclusion of land for shamlat deh, the land should have been acquired by purchase or in exchange for proprietary land from a co-sharer in shamlat deh and a land that is not acquired by purchase or in exchange from any sharer in the shamlat deh, would not be covered by proviso (iv) to Section 2(g). The Hon'ble Supreme Court was dealing with the case where there was an entry in jamabandi of the year 1914-1915 where the property was described as shamlat deh and the persons, who were staking a claim, were seeking the applicability of the proviso to sub-clause (iv) of Section 2(g), which reads as follows:- “(iv) having been acquired before 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 Civil Writ Petition No.9920 of 1989 - 12 - the jamabandi or is supported by a valid deed.” The Hon'ble Supreme Court held as follows: “...........The fact that even then it was recorded in the 'Jamabandi' as 'shamlat deh' shows that that particular character of the land was recognised even as far back as 1914-1915, and it could not detract from that nature of the land merely because it was further stated in the 'jamabandi' that it was in the possession of the owners “as per respective shares in khewat”. Secondly, the aforesaid sub- clause (iv) requires that in order to be excluded from the category of “shamlat deh”, the land should have been acquired by “purchase or in exchange for proprietary land from a co-sharer in the “shamlat deh”. Then there is the further fact that the appellants have not been able to prove that the suit land was recorded in the 'jamabandi' as having been so acquired; and they have not been able to produce any valid deed of purchase or exchange from any such co- sharer. We are therefore unable to think that the view taken in the impugned judgment of the High Court requires reconsideration.” 8. He also would refer to other Bench decisions of this Court in Shiv Charan Singh and others Versus Gram Panchayat Narike and another-1978 RLR 33, which held that the banjar qadim land which is used for common purposes of village falls within shamlat deh. In Tel Ram and others Versus Gram Sabha Manakpur and others-1976 PLJ 628 a Division Bench of this Court held that all classes in Section 2(g) Clauses (1) to (5) were independent to each other and recourse to any one clause ought to be to the exclusion of other. If the land would fall under any one of the clauses, it was sufficient to bring the land within the definition of the word “shamlat deh”. If a requirement of Clause (1) was Civil Writ Petition No.9920 of 1989 - 13 - only that the property must be treated as shamlat deh and referred as such, and the land was also shown as banjar qadim in revenue records, it was not necessary to prove that the banjar qadim land was used for common purposes of the village. 9. In my view, the definition of “shamlat deh” under the Act obtains enormous relevance and it is, therefore, reproduced as under:- “(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 of the village community or a part thereof or for common purposes of village. (4) Lands used or reserved for the benefit of the village, community including, streets, lanes, playgrounds, school, drinking wells, jor 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. But does not include (i) ......... (ii) to (ix)..............” 10. If, in this case, any one of the petitioners had been shown to have been in possession prior to coming into force the Act on 26.01.1950, by reference to the fact that the property had been described as banjar qadim, it would have been taken as an evidence of the fact that the property had not been put to common use of the village. Similarly, any reference to the property by a specific tholas and shown as having been exclusively enjoyed, there having been no benefit to the village Civil Writ Petition No.9920 of 1989 - 14 - community, it would attract the classification brought under Section 2(g) (3). If the panchayat is able to show that the revenue records merely recorded the property as shamlat deh and no other entry was there in the jamabandi, then the applicability of Section 2(g)(1) would become unexceptional. In fact it is with reference to Section 2(g)(1) that the Commissioner came to the conclusion that if the jamabandi had shown the property as shamlat deh and none of the private individuals had shown their possession for any date prior to 26.01.1950, no further proof was necessary for the panchayat to claim that the property had become vested in it. In my view, the approach of the Commissioner had been rather too simplistic in assuming that if there was a reference in column No.4 describing the name and description of the owner as shamlat deh and that immediately called for the applicability of Section 2(g)(1). In all the decisions, where alongside the entry of shamlat deh, there was also an entry of Hasab Hissas, Paimana Haqiat and the name of the owner had been mentioned. In this case, in none of the documents filed on behalf of the petitioners, is there any reference to the name of the owner. Even in the document which the learned counsel for the petitioner in Civil Writ Petition No.10881 of 1989 contended that the jamabandi entries that had been filed in Court referred to Bikarami 1960- 61 corresponding to 1914-1915, there was merely a reference to the scale of ownership as per Shajra Nasab but contained no reference to any owner's name. If there has been any jamabandi entry referring to the name of the proprietor alongside the entry shamlat deh prior to 26.01.1950, in my view, it would conclude the issue to find that the Civil Writ Petition No.9920 of 1989 - 15 - property did not vest in the panchayat and that it was not shamlat deh. In this case, the Commissioner found that even apart from the entry that the property was shamlat deh, it upheld the contention of the panchayat that the property had been used for the