CWP No.2198 of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.2198 of 2001 Date of decision:28.06.2010 Balwant Singh and others ...... Petitioners VERSUS State of Haryana through Commissioner and Secretary to Government of Haryana, Revenue Department ......Respondents CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA. Present: Mr.Pritam Saini, Advocate for the petitioners. Mr.S.S.Pattar, Senior DAG, Haryana for respondents no.1 to 4. Mr.Sanjiv Gupta, Advocate for respondent no.5. ***** RAJIVE BHALLA.J (Oral) This order shall dispose of CWP Nos.2198, 1836, 4503, 4504, 4506 and 4507 of 2001 and RSA No.1201 of 2008 as they involve adjudication of common questions of fact and law, namely whether the land in dispute vests or does not vest in the Gram Panchayat. For the sake of convenience, the facts are being taken from CWP No.2198 of 2001. The Gram Panchayat filed a petition, under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to the State of Haryana (hereinafter referred to as the 1961 Act), praying for ejectment of the petitioners on the ground that they are unauthorised occupants of shamilat deh. In response, the petitioners pleaded that as the land in dispute was “shamlat deh hasab rasad zair khewat patti guhla hasab rasad zair khewat patti nagraj hasab rasad zair khewat” it does not vest in the Gram Panchayat. The petitioners purchased this land from co- shareres of the patti vide registered sale deeds dated 30.12.1950 and CWP No.2198 of 2001 -2- 28.02.1951. The land in dispute, having been sold to the petitioners before the enactment of the Punjab Village Common Lands (Regulation) Act, 1953 and the 1961 Act, the land in dispute does vest in the Gram Panchayat. The petitioners also pleaded that after consolidation proceedings, they approached the Director Consolidation for delivery of possession of the land in dispute. Vide order dated 23.12.1965, the Director Consolidation ordered delivery of possession to the petitioners which was delivered, to the petitioners, in the year 1966. The Assistant Collector, Ist Grade, Kurukshetra, dismissed the application by holding that as the petitioners have purchased the land by way of registered sale deeds, the land does not vest in the Gram Panchayat. Aggrieved by this order, the Gram Panchayat filed an appeal. The Collector, Kurukshetra, accepted the appeal and remitted the matter to the Assistant Collector, Ist Grade, Pehowa, to decide the matter afresh after granting an opportunity to the parties to adduce evidence. After grant of opportunity to the parties to lead evidence, the Assistant Collector, Ist Grade, allowed the application and ordered the ejectment of the petitioners. The petitioners thereafter filed an appeal before the Collector, Kurukshetra, who accepted the appeal, set aside the order passed by the Assistant Collector, Pehowa, and directed that the Assistant Collector should decide the application under Section 7(3) of the 1961 Act and only thereafter proceed to decide the application for ejectment. The Assistant Collector, Ist Grade, Pehowa, vide order dated 30.08.1994, reconsidered the entire controversy, after holding that the sale deeds dated 30.12.1950 and 28.02.1951 do not confer any right, title or interest upon the petitioners, rejected the petitioners plea of ownership, held CWP No.2198 of 2001 -3- that the Gram Panchayat is owner of the land in dispute and directed ejectment of the petitioners. The appeals filed by the petitioners before the Collector were dismissed on 30.05.2000 as were the revisions filed before the Commissioner, Ambala Division on 27.09.2000. Counsel for the petitioners submits that the petitioners admittedly purchased this land before the enactment of the Punjab Village Common Lands (Regulation) Act, 1953 and the 1961 Act. Section 4 of the 1961 Act protects such purchases and therefore, the sale deeds have been wrongly rejected. The mutation recorded in favour of the Gram Panchayat neither confers title upon the Gram Panchayat nor divests the petitioners of their title. It is further argued that as the land was described as Shamilat patti in the jamabandi for the year 1940-41, and it was not used for common purposes of the village or a part thereof it is excluded from “Shamilat deh” by virtue of proviso (V) to Section 2(g) of the 1961 Act. It is further argued that the order dated 23.12.1965, passed by the Consolidation Officer, Karnal, holding that the petitioners are shareholders in the shamilat land, has not been challenged by the Gram Panchayat and therefore binds the rights of the parties, in perpetuity. Counsel for the respondents no.4 and 5 submits that purchase of the property by way of a registered sale deeds is irrelevant as in view of the provisos to Section 2(g) and the provisions of Section 3 of the 1961 Act, the land is shamilat deh. It is argued that in view of the statutory vesting of the land in the Gram Panchayat, the petitioners have been divested of their proprietary rights. The order passed by the Director Consolidation, is irrelevant as Consolidation authorities have no jurisdiction to decide the question whether land vests or does not vest in a Gram Panchayat. It is CWP No.2198 of 2001 -4- further submitted that the argument that the land does not vest in the Gram Panchayat as it is shamilat patti, has neither been pleaded nor urged before the Assistant Collector, the Collector or the Commissioner and therefore, cannot be urged for the first time before this Court. I have heard counsel for the parties, perused the paper book, considered the revenue entries, the orders appended with the writ petition and the impugned orders. In my considered opinion, the impugned orders do not disclose any error of jurisdiction or of law. Admittedly, the jamabandi for the year 1940-41 records that the land in dispute is Shamlat deh hasab rasad zair khewat patti guhla, hasab rasad zair khewat patti nagraj hasab rasad zair khewat. It is not denied that the petitioners purchased this land from the proprietors vide two separate registered sale deeds dated 30.12.1950 and 28.02.1951. The question therefore, that arises for adjudication is whether by purchase of a share in shamilat deh, sold to the petitioners by sale deeds executed prior to the enactment of the Punjab Village Common Lands (Regulation) Act, 1953 or the 1961 Act, the land in dispute is excluded from shamilat deh. The answer to this question lies in the provisions of Section 2(g), Section 3 and Section 4 of the 1961 Act, which read as under:- “2(g) “shamilat deh” includes: - (1) lands described in the revenue record as [Shamilat deh or Charand] excluding abadi deh; (2) shamilat tikkas; (3) lands 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 the village; CWP No.2198 of 2001 -5- (4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds situated within the sabha area as defined in clause (mmm) of section 3 of the Punjab Gram Panchayat Act, 1952, excluding lands reserved for the common purposes of a village under section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under Section 23-A of the aforesaid Act; (4a) Vacant land situated in abadi deh or gorah deh not owned by any person; (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) becomes or has become shamilat deh due to river action or has been reserved as shamilat in villages subject to river action except shamilat deh entered as pasture, pond or playground in the revenue records; (ii) has been allotted on quasi-permanent basis to a displaced person; (ii-a) was shamilat deh, but has been allotted to any person by the Rehabilitation Department of the State Government, 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 is so recorded in the jamabandi or is supported by a valid deed; (v) is described in the revenue records as shamilat, CWP No.2198 of 2001 -6- taraf, pattis, pannas, and thola and not used according to revenue records for the benefit of 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) is used as a place or worship or for purposes subservient thereto; (6) lands reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the Gram Panchayat under section 23-A of the aforesaid Act. Explanation- Lands entered in the column of ownership of record of rights as “Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad”, Jumla Malkan” or “Mushtarka Malkan” shall be shamilat deh within the meaning of this section. Section 2(g) of the1961 Act, postulates that land referred in sub Sections (1) to (5) shall be included in Shamilat deh whereas land referred to in the provisos to Section 2(g) shall be excluded from Shamilat deh. Proviso (iv) to Section 2(g) excludes only such land, from Shamilat deh, as has been acquired before 26.01.1950. The petitioners, admittedly purchased the land in dispute on 30.12.1950 and 28.02.1951, after the date prescribed CWP No.2198 of 2001 -7- by the proviso aforestated and therefore, is not excluded from Shamilat Deh by proviso (iv) to section 2(g) of the 1961 Act. Section 3 of the 1961 Act, reads as follows: - 3. Lands to which this Act applies-- (1) This Act shall apply and before the commencement of this Act the Shamilat Law shall be deemed always to have applied to all lands which are shamilat deh as defined in clause(g) of section 2. [(2) Notwithstanding anything contained in sub-section (1) of section 4, ---- (i) where any land has vested in a panchayat under the shamilat law, but such land, other than excluded under sub-clause (ii-a) of clause (g) of section 2, has been excluded from shamilat deh as defined in clause (g) of section 2, all rights, title and interest of the panchayat in such land, as from the commencement of this Act, cease and such rights, title and interest shall be revested in the person or persons in whom they vested immediately before the commencement of the shamilat law; and the panchayat shall deliver possession of such land to such person or persons. Provided that where a panchayat is unable to deliver possession of any such land on account of its having been sold or utilised for any of its purposes, the rights, title and interest of the panchayat in such land shall not so cease but the panchayat shall, notwithstanding anything contained in Section 10, pay to the person or persons entitled to such land, compensation to be determined in accordance with such principles and in such manner as may be prescribed. (ii) where any land has vested in a panchayat under this Act, but such land has been excluded from shamilat deh under sub-clause (ii-a) of clause (g) of section 2, all rights, title and interest of the panchayat in CWP No.2198 of 2001 -8- such land, from thedate of allotment of such land by the Rehabilitation Department of the State Government, shall cease and all such rights, title and interest shall vest in the person or persons to whom the land so excluded has been allotted by the Rehabilitation Department of the State Government on or before the 9th day of July, 1985 subject to the condition that --- (a) any sum of money realised by the Rehabilitation Department of the State Government as a result of allotment of such land; or (b) where no money was realisable by the Rehabilitation Department of the State Government as a result of allotment of such land, the amount of compensation in respect of such land as determined under sub-section (3) by the Collector of the district in which such a land is situated, shall be paid by the Rehabilitation Department of the State Government to the Development and Panchayats Department for onward disbursement to the panchayat to which such shamilat deh belonged. (3)As soon as may be, on the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1996 the Development and Panchayats Department shall make a reference to the Collector of the District to determine the amount of compensation under sub-clause (b) of clause (ii) of sub-section (2) and the Collector of the District shall, keeping in view the market value of the shamilat deh at the time it was allotted, determine the amount of compensation.] Section 3 of the 1961 Act, extends the operation of 1961 Act to Shamilat law i.e. the Punjab Village Common Lands (Regulation) Act, 1953 and to land that has been declared as Shamilat Deh under the 1961 Act. Section 3 therefore, does not help the petitioners' cause in excluding the land purchased by the petitioners, from the definition of Shamilat Deh. CWP No.2198 of 2001 -9- Section 4 of the 1961 Act reads as follows: - 4. Vesting of rights in Panchayat and non-proprietors:- (1) Nothwithstanding 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 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. (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, Bassikhuopahus, Saunjidars, CWP No.2198 of 2001 -10- Muqararidars; [(ii) rights of persons who were in cultivating possession of shamilat deh on the date of the commencement of the Punjab Village Common Lands (Regulation) Act, 1953 or the Pepsu Village Common Lands (Regulation) Act, 1954, and were in such cultivating possession for more than twelve years on such commencement 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. Section 4 of the Act bears the title “Vesting of rights in Panchayat and non-proprietors”. A considered appraisal of sub Sections (1) to (3) leaves no manner of doubt, that these provisions do not apply to the petitioners' case whether directly or by necessary inference. Section 4(1)(a) in fact, has to be read as nullifying the claim of the petitioners as it clearly states that land which is included in the shamilat deh of any village and which has not vested in the Panchayat under the “shamilat law” shall, at the commencement of the Act, 1961,vest in the Panchayat. A conjoint reading of Section 4 and proviso (iv) to Section 2(g) of the Act, leads to a singular conclusion that only such sales/purchases of share in Shamilat deh would be excluded from the definition of Shamilat deh as were effected prior to 31 January, 1950. The petitioners, admittedly purchased the land in dispute vide sale deeds dated 30.12.1950 and 28.02.1951 i.e. after the said date and therefore, cannot be heard to urge that CWP No.2198 of 2001 -11- the land does not vest in the Gram Panchayat. In this view of the matter, I have no hesitation in holding that the Assistant Collector, the Collector and the Commissioner, have not committed any error in holding that the land in dispute vests in the Gram Panchayat. Before parting with the judgment, it would be necessary to deal with certain other arguments raised by counsel for the petitioners. The argument that the order passed by the Director Consolidation, is binding upon the Gram Panchayat, disregards the inherent lack of jurisdiction in a authority exercising powers under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, to record such a finding against the ownership of a Gram Panchayat. Another argument pressed into service by counsel for the petitioners is that as the land is described as 'Shamilat patti', in the year 1941-42, it does not vest in the Gram Panchayat as it was never used for the common purposes of the village or a part thereof, cannot be urged for the first time in writ jurisdiction as no such plea was raised before the Assistant Collector, the Collector or the Commissioner. In view of what has been stated hereinabove, the writ petitions are dismissed with no order as to costs. 28.06.2010 [RAJIVE BHALLA] shamsher JUDGE