IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 16609 of 2011 Date of decision: 8.9.2011 Harnek Singh …..Petitioner vs. Gram Panchayat and ors …..Respondents CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE VIJENDER SINGH MALIK Present: - Mr. Amarjit Markan, Advocate for the petitioner HEMANT GUPTA, J Challenge in the present petition is to an order passed by learned Collector on 27.4.2010 (Anneuxre P-5) and order in appeal in exercise of the powers of the Commissioner dated 4.5.2011 (Annexure P-6), in a petition filed by the petitioner under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short the ‘Act’). It is asserted by the petitioner in the writ petition that he is in cultivating possession of 18 Biswas of Khasra No. 623 out of the land measuring 657 Bighas 6 Biswas before 26.1.1950, reflected in the Jamabandi for the year 1944-45. In the column of ownership, Shamlat Hasab Rasad Zer Khewat Mundarza Shajra Nasab and also in possession of Makbooja Malakan. CWP No. 8663 of 2011 It is pointed out that Bhagwan Singh was Khewatdar/proprietor which is made out from the Jamabandi for the year 1944-45. Subsequent Jamabandi for the year 1952-53 reflects the possession of Kehar Singh, co-sharer in the land measuring 1 Bighas 3 Bhiswas of Khasra No. 262, whereas the possession of Fatu co-sharer has been reflected in possession of land measuring 8 Bighas 13 Biswas. As per the petition, the issue is whether under Section 11 of the Act, the Collector was required to decide the proceedings by giving opportunity to the parties to lead evidence and to decide the question of title applying the principle of Code of Civil Procedure or it can be decided in summary manner. It may be noticed that in the order dated 27.4.2010 (Annexure P-5), learned Collector has noticed the Jamabandies from the year 1952-53, 1965-66, 1970-71, 1975-76, 1985-86, 1989-90, 1994-95, 1999-2000 and 2004- 05, wherein, in the column of ownership, Nagar Panchayat Deh is recorded as owner. The Collector noticed that in terms of Rule 21 of the Rules, petition has to be filed within 30 days from the Mutation of the Consolidation but the same has been filed beyond the prescribed period of limitation. Therefore, the petition is without merit and dismissed accordingly. In appeal, the Commissioner observed that the petitioner has not produced any evidence which shows possession of the appellant since 26.1.1950 and the mutation of the disputed 2 CWP No. 8663 of 2011 land in the name of Gram Panchayat is very old. The Commissioner noticed that the Gram Panchayat is recorded as the owner in the Jamabandi for the year 1957-58 and in the column of cultivation name of Kesar Singh son of Khadak Singh is mentioned. Thus, the appeal was dismissed. With the writ petition, the petitioners have attached the Jamabandi for the year 1944-45 apart from the Jamabandies for the year 1952-53 and 1957-58 onwards. Learned counsel for the petitioners have vehemently argued that neither the Collector nor the Commissioner have provided any opportunity to the petitioner to lead evidence in support of his assertion of title over the disputed property. It is contended that under Section 11 of the Act, the question of title is required to be decided and such question can be decided only after giving opportunity to the parties to lead evidence. Therefore, the decision of the authorities in a summary manner is illegal and unwarranted. Learned counsel for the petitioner has relied upon Division Bench judgment of this Court reported as Nant Singh vs. Joint Director Panchayat, Punjab 1993(3) PLR 729 and a Single Bench judgment reported as Brij Mohan vs. State of Punjab and ors 2010(5) RCR 77. Before we consider the arguments raised by the learned counsel for the petitioner some of the assertions made by the petitioner, in the petition under Section 11 of the Act, needs to be extracted. 3 CWP No. 8663 of 2011 “(1) That the petitioner is the permanent resident and Khewatdar of Village Panjola Kalan, Tehsil and Distt. Fatehgarh Sahib and as such the petitioner is the shareholder of the land which is mentioned in the heading of the petition. 2. That previously the grand father of the petitioner namely Sh.Bhagwan Singh s/o Bakhtaur Singh was in possession of the property as mentioned at letter X in the heading of the petition (hereinafter called the suit property). Said Bhagwan Singh has died on 10.3.1992 and after his death as per family settlement; the petitioner came into possession of the suit property and the possession of the petitioner over the suit property is actual, peaceful, physical, cultivating, continuous, uninterrupted and hostile, without payment of any rent/Chakota/Batai to the respondent Gram Panchayat or anybody else from the time of his fore-fathers. 3. That the respondent Gram Panchayat never came into possession of the suit property and it never lease out the suit property and the suit property was never used for any common purposes of the village and same is not vests in the respondent Gram Panchayat according to Section 2(g) of the Punjab Village Common Land (Regulations), Act 1961.” In fact a perusal of para 2 shows that the petitioner has set up the pleadings as if the petitioner is in adverse possession and claiming title on that basis. A perusal of the said petition shows that the petitioner has not disclosed any particulars of his agricultural holding in the village. It is the holding of agricultural land in the village, the proportionate share in the Shamlat Deh can be determined. The petitioner has not attached any list of properties nor their respective shares in the Shamlat. The 4 CWP No. 8663 of 2011 petitioner has also not asserted that he is in possession prior to 26.1.1950. From the order dated 27.4.2010 (Annexure P-5), it transpires that the earlier Jamabandi which has been produced is of the year 1952-53, whereas the crucial cut off period is 26.1.1950 in terms of Section 2(g) of the Act. The said extract from the Act reads as under: - 2(g) “Shamlat Deh” includes: - (iii) has been partitioned and brought under cultivation by individual land holders before the 26th January, 1950; (viii) was Shamlat 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 Shamlat Deh on or before the 26th January, 1950. The Division Bench of this Court reported as Amar Singh and ors vs. State of Haryana and ors 2008(2)RCR (Civil) 43 have examined the provisions of Section 2(g) of the Act, as amended in State of Haryana but the Clause (iii) and (viii) are pari materia. - It has been held that Section 2(g) of the Act is in two parts: the first part relates to the land which includes in Shamlat Deh and; second part relates to the land which is excluded. In terms of Clause (iii), it has to be shown that the land has to be partitioned and brought under the cultivation 5 CWP No. 8663 of 2011 by individual land owners before 26.1.1950. A perusal of the entire petition dated 9.4.2010 (Anneuxre P-4) filed by the petitioner before the Collector does not even remotely referred to any of the conditions of Clause (iii) so as to include the land from being a Shamlat Deh. Clause (viii) also excludes the Shamlat Deh excess to the land revenue and has been in individual cultivating possession of co-sharers not being in excess of their shares in Shamlat Deh before 26.1.1950. Though, in Clause (iii), the entire Shamlat Deh is required to be partitioned and brought under the cultivation of the individual land owners but under Clause (viii), an individual can claim the exclusion of land from Shamlat Deh, if it is not in excess of his share in Shamlat Deh and on proving that he is in possession before 26.1.1950. Since there is no affirmation in the petition or any such document produced before the Collector or the Commissioner, we do not find any irregularity or illegality in the order passed whereby the claim of the petitioner is rejected in summary manner. Since, the entire reading of the petition (Anneuxre P-4) does not make out any case for excluding the land as Shamlat Deh, therefore, there was no necessity for the Collector to give opportunity to the petitioner to lead evidence. The evidence has to be led in support of the pleadings for that since, there are no pleadings no evidence beyond the pleadings could be relied. Therefore, we do not find any illegality or irregularity in the order passed. 6 CWP No. 8663 of 2011 Though, the petitioner has not produced the Jamabandi for the year 1944-45 before the Collector but since, the same have been produced before this Court. We have examined the same. In the column of ownership, Shamlat Hasab Rasad is translated as according to area of holding as cantained in genealogical table and the entry in the column of Makbooja Malakan i.e., the owner, land is described as banzar qadim, gair mumkin, banzar means uncultivable for eight successive harvests. One Bhagwan Singh is shown in possession of 16 Biswas of Rasoli land. Even, the said entry in the Jamabandi is of no help to the arguments raised by learned counsel for the petitioner. In fact, the land is described as Shamlat in the Column of ownership and therefore it is Shamlat Deh in terms of first part of Section 2(g) of the Act. The land which is described as Shamlat vests in Panchayat in terms of Section 2 (g) (1) of the Act read with Section 4(1) (a). The Division Bench in Amar Singh’s case (supra) has held to the following effect: - “(9) A reading of Section 2(g)(1)of the 1961 Act shows that the land which is described in the revenue record as ‘Shamlat Deh’ excluding Abadi Deh is ‘Shamlat Deh’. In terms of Section 4(1)(a) of the 1961 Act, 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 whatsoever in the land which is 7 CWP No. 8663 of 2011 included in ‘Shamlat Deh’ of any village and which is not vested in a Panchayat under the ‘Shamlat Law’ shall at the commencement of the 1961 Act vest in the Panchayat constituted for the said village and where no such panchayat has been constituted for such village vest in the panchayat on such date as panchayat having jurisdiction over that village is constituted.” Still further, Rasoli is not cultivable land. The said aspect has again been considered in the aforesaid Division Bench judgment where, the land was described as the gair mumkin ret. It has been observed that the land recorded as gair mumkin ret dislodges the stand of the petitioner that it has been individual cultivating possession of the co-sharers. In fact the Jamabandi for the year 1944-45 shows that the land has been reserved for common purposes. We do not find any merit in the said argument. The judgment of the Division Bench and of the Single Bench of this Court arisen in respect of the dispute between the parties regarding the veracity of the averments made in the petition. In the present case, even if the entire petition filed by the petitioner is admitted to be correct still, the petitioner is not able to make out that he has any justifiable claim over the land in dispute. (HEMANT GUPTA) JUDGE (VIJENDER SINGH MALIK) 8 CWP No. 8663 of 2011 JUDGE 8.9.2011 preeti 9