C.W.P. No.20712 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. C.W.P. No.20712 of 2011 (O&M) DATE OF DECISION : 8.11.2011 Maghar Singh and others PETITIONERS VERSUS Commissioner, Patiala Division, Patialr & others RESPONDENTS CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri Arun Jain, Senior Advocate with Shri Amit Jain, Advocate for the petitioners. MAHESH GROVER, J. The petitioners have impugned the orders dated 21.1.2008, 17.8.2010 and 31.5.2011 Annexures P-6, P-7 and P-8 respectively being unsustainable. The petitioners plead that the land in question is “Jumla Mushtarka Malkaan Haqdaran Arazi Hasab Rasad Zar Khewat” and before the consolidation of holdings, Jumla Mushtarka Malkaan was not in existence which concept came into existence after the consolidation of holdings in the village and that about 10 proprietors of the village made a representation to the Tehsildar, Nabha on 16.1.2004 that Jumla Mushtarka Malkaan land should be partitioned amongst the proprietors of the village as per their shares which was accepted and Mutation C.W.P. No.20712 of 2011 -2- No.1015 was sanctioned on 3.2.2004 in their favour. Subsequently, some residents of the village purchased the land from the Khewatdars through registered sale deeds and mutation to this effect was sanctioned in their favour, whereupon they filed a petition for correction of khasra girdawari which was accepted, but the Gram Panchayat filed an appeal before the Collector, Nabha against the order dated 3.2.2004 which was rejected on 15.6.2005 which led to the filing of the revision which was accepted and the mutation was declared contested and the matter was remanded to the Assistant Collector IInd Grade, Nabha vide order dated 27.9.2006. Thereafter Maghar Singh and others filed a revision petition before the Assistant Collector Ist Grade who rejected the mutation of 21.1.2008. The petitioners filed an appeal before the Collector, Patiala who also dismissed the same vide order dated 17.8.2010 which led to the filing of revision which was also dismissed, leading to the filing of the present petition. In the meantime, the vendees who had purchased the land from the Khewatdars after the land been partitioned in 2004, filed a suit for permanent injunction which was decreed and possession was granted to the vendees and the Gram Panchayat was restrained from interfering in their peaceful possession by virtue of the orders of the Civil Court dated 21.2.2007. An appeal against this order was also dismissed. Thus, it is this 110 kanals 11 marlas of land which is questioned by the petitioners to say that this land was entered as Jumla Mushtarka Malkaan land and was never under the control of the panchayat and not being shamilat, was not used for common purposes. The Gram Panchayat filed a separate petition under Section 11 of the Punjab Village Common Lands Act, which was rejected and an appeal was filed against the same. The plea of the petitioners is that nature of the land could not have been changed in view of the amendment of the East Punjab Holdings C.W.P. No.20712 of 2011 -3- (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act) with particular reference to Section 42A of the Act. As against this, the respondents had set up a case before the competent authority that the land in question was partitioned amongst the right holders on 17.1.2004 and the Khewatdars of the village had sold the land to Gurmail Singh and mutation No.1105 was entered in their names on the basis of registered sale deeds. It is thus pleaded that the proprietors of the village had no title about the land in dispute which mutation was got sanctioned without any notice to them and in fact, they were not entitled to sell the land to the transferees and their possession is also unauthorised and mutation in their favour is also illegal. All the three authorities i.e. Assistant Collector, Collector and the Commissioner have held concurrently. It has been held that as per the revenue record, the disputed land is entered as Jumla Mushtarka Malkaan Haqdaran Arazi Rasad Rakba Khewat and the mutation was altered on 16.1.2004 by making a simple application for partition by saying that the land is Jumla Mushtarka Malkaan and they were the owners in possession. This prayer was accepted by the Assistant Collector IInd Grade who ordered the mutation to be effected in favour of the proprietors of the village which was done on 3.2.2004. The Gram Panchayat challenged this order before the Collector who rejected the same on 15.6.2005, but the revision against this order was accepted on 27.9.2006 which order was affirmed by the Financial Commissioner Revenue on 12.7.2007. After the matter had been remanded to the Assistant Collector, the case was heard in detail and the sanctioning of mutation was rejected on 21.1.2008. Primarily based on the instructions of the Punjab Government dated 9.8.2007, the subsequent appeal and the revision were also dismissed. The Financial Commissioner observed with reference to the record C.W.P. No.20712 of 2011 -4- that the land was partitioned on an application moved by some of the villagers on 16.1.2004 and 110 kanals 11 marlas of village land was mutated on the very next day i.e. 17.1.2004. No report from the B.D.P.O. was sought before resorting to this process, so much so that even the antecedents of the applicants were not verified to see as to whether they were actually the proprietors of the village. The whole process was concluded in one day without bothering to ascertain the provisions of law and authenticity of the claim. It is evident that the Tehsildar had acted in an undue haste and in a manner which casts an aspersion on his conduct. Even the Gram Panchayat did not bother to challenge this order which indicates that in all probability, they were hand in glove with the usurpers of the land. Section 42A of the Act divests the proprietors of some rights which are meant to be utilised for common purposes, the relevant portion of the same is extracted here below :- “42-A. Prohibition to partition the land reserved for common purposes.- Notwithstanding anything contained in this Act or in any other law for the time being in force, or in any judgment, decree, order or decision of any court, or any authority or any officer, the land reserved for common purposes whether specified in the consolidation scheme or not, shall not be partitioned amongst the proprietors of the village, and it shall be utilized and continue to be utilized for common purposes.” It is, therefore, evident that the order dated 16.1.2004 and the consequent mutation of 3.2.2004 were in complete violation of the law and the Divisional Commissioner, Patiala Division was right in directing the action to be taken for retrieving 110 kanals 11 marlas of land from the petitioners and was also C.W.P. No.20712 of 2011 -5- right in directing that the land be restored to the Gram Panchayat for its being used for the benefit of the people and panchayat. There is no merit in the petition and no illegality could be effectively pointed out by the learned counsel for the petitioners. The petition is dismissed. Before parting with the order, I am of the opinion that disciplinary proceedings should be initiated and an effective enquiry should be conducted against the Tehsildar who passed the order dated 17.1.2004 and against those persons who connived to grab the land of the panchayat and upon establishing the guilt of the persons, necessary action should be initiated including prosecution, if the facts so warrant. The enquiry and the consequent action should be initiated and completed against the persons involved within a period of six months from today. A copy of the report and the action initiated should be furnished to this Court thereafter. (MAHESH GROVER) November 8, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO