CWP No.13652 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.13652 of 2009 Date of Decision: 07.07, 2011 Baljinder Singh and others ..Petitioners Versus The State of Haryana and others ..Respondents CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA Present : Mr.Vikram Singh, Advocate for the petitioners. Mr. Ashok Jindal, Additional Advocate General, Haryana for respondents no.1 and 2. Mr. Ashok Khubbar, Advocate for respondent No.3. RAJIVE BHALLA, J This order shall dispose of CWP Nos. 3068 of 2008, 7193, 9118 13652, 19726 of 2009, 640, 987, 1055, 1759, 2026, 3003, 3232, 3582,3823, 3824, 4197,4469, 4545, 4642, 4722, 4983, 5031, 5442, 5457, 5589, 6516, 6562, 6599, 6621, 8480, 8932, 10020, 13590 and 16928 of 2010 as they involve adjudication of similar questions of law. Facts necessary for adjudication of these writ petitions are being taken from CWP No.13652 of 2009. The petitioners who are inhabitants of different villages impugn the proposal of their Gram Panchayats to auction land reserved as pastures/grazing grounds for the purpose of cultivation. The petitioners, in essence, contend that as this land was reserved as a pasture pursuant to a scheme prepared under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as "the CWP No.13652 of 2009 2 Consolidation Act") and as neither the Consolidation Act nor the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as "the 1961 Act") empower a Gram Panchayat to change its user, land reserved as grazing grounds/pastures cannot be auctioned for the purpose of cultivation. Counsel for the petitioners submits that the State of Haryana is an agrarian State. A significant segment of its rural population depends upon farm animals like cows, buffaloes and goats, for their livelihood. Large tracts of land, recorded in the revenue record as “Charand”, are reserved in each revenue estate, for grazing of farm animals. An inhabitant of a village irrespective of his status, is entitled to graze his cattle in these pastures. In the absence of any statutory power, a Gram Panchayat can not be allowed to alter the user of land reserved as pastures for other purposes, including cultivation. Counsel for the petitioners further submits that 160 Acres of land was reserved, for the purpose of Gau Charand (Pasture) during consolidation. Though, ownership of this land vests in the Gram Panchayat, but the right so vested is subject to the right of inhabitants, of the village, to graze, their cattle. The Gram Panchayat's attempt to auction this land for cultivation would deprive the inhabitants of the village of their right to graze cattle and extinguish these rights. Counsel for the petitioners submits that the expression “common purposes” is defined under Section 2(bb) of the Consolidation Act to include land reserved for grazing grounds. During consolidation, a scheme is prepared, which has the force of law. Sections 18 and 23-A of the the Consolidation Act require a consolidation officer to reserve land for “common purposes”. Section 23-A(b) of the Consolidation Act provides that land so reserved, except where the land vests in the State Government, shall vest in the Panchayat of that village, subject to the rights of common CWP No.13652 of 2009 3 user assigned during consolidation. The “common purpose” assigned to “common land” under the Consolidation Act, pursuant to a scheme, cannot be altered as neither the Consolidation Act nor the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the 1961 Act'), contains any statutory provision empowering a Gram Panchayat to do so. The Gram Panchayat, therefore, cannot be allowed to auction land reserved as a grazing ground for the purpose of cultivation. It is further submitted that though Section 5 of the 1961 Act, provides for regulation of use and occupation of lands vested or deemed to have vested in a Gram Panchayat it does not empower a Gram Panchayat to alter the user of common land. The procedure for utilisation and disposal of land is “prescribed” by Rules 3 and 8 of the Punjab Village Common Lands (Regulation) Rules, 1964 (hereinafter referred to as `1964 Rules'). Rule 3 (1) of the 1964 Rules provides that a Panchayat shall prepare a land utilisation plan for the land in Shamilat Deh and subject to its approval by the Panchayat Samiti and the Government, a Gram Panchayat may make use of the land for common purposes set out in Rule 3(2) of the 1964 Rules. The common purposes set out in Rule 3(2) have to be read with Section 2(bb), Section 18 and Section 23-A of the Consolidation Act, Rule 3 (2)(i) and Rule 8 of the 1964. The latter rules require a Gram Panchayat to reserve land for grazing grounds. A parcel of land already reserved for a grazing ground cannot be diverted to another use by resort to the provisions of Sections 5, 5-A of the 1961 Act and Rules 3 and 8 of the 1964 Rules. In support of these arguments,counsel for the petitioners rely upon Rule 8 of the 1964 Rules to urge that as Rule 8 requires a Gram Panchayat to reserve land for pastures for grazing of cattle the land already reserved as a pasture cannot be diverted to cultivation by resort to Sections 5, 5-A of the 1961 Act or Rule 3 of the 1964 Rules. It is further submitted that though the CWP No.13652 of 2009 4 third proviso to Section 5 of the 1961 Act empowers a Gram Panchayat to reserve Shamilat Deh for settlement of landless tenants and other tenants ejected or to be ejected of that village, it does not empower a Gram Panchayat to alter the nature or the user of land reserved for Charand. Similarly Section 5-A of the 1961 Act empowers the Gram Panchayat to dispose of lands vested or deemed to have vested in a Panchayat but does not empower the Gram Panchayat to change the nature or the user of the land. It is further submitted that even if it is accepted that the Gram Panchayat has the power to alter the user of its land, by resort to Rule 3 of the 1964 Rules, such a change can only be effected after the Gram Panchayat prepares a land utilisation plan in accordance with Rule 3(1) of the 1964 Rules and then also if such change is for the benefit of the village community. It is further argued that as the Gram Panchayat has not prepared a land utilisation plan, it cannot be allowed to divert pastures/grazing grounds for cultivation. Counsel for the Gram Panchayat and counsel for the State of Haryana submit that there is no impediment, whether in the Consolidation Act, the 1961 Act or the Rules framed thereunder prohibiting a Gram Panchayat from altering the “common purpose” of land in Shamilat Deh land, whether reserved for Charand or for any other purpose. It is argued that human needs and the needs of the village community have changed with the passage of time. The land in dispute was reserved during consolidation as Charand and has come to vest in the Gram Panchayat, under Section 2(g)(1) of the 1961 Act. Section 23-A(b) of the Consolidation Act provides that upon vesting of land reserved for common purposes, in the Gram Panchayat, the rights of proprietors shall stand extinguished. The Gram Panchayat is, admittedly, owner of the land and, therefore, cannot be restrained from using its land in such manner, as it may deem appropriate. In the absence of any statutory prohibition, on the right of the CWP No.13652 of 2009 5 Gram Panchayat to utilise the land in accordance with “common purposes” prescribed by the 1961 Act and the 1964 Rules, the Gram Panchayat may alter the user of land for the purposes set out in Section 5 and 5-A of the 1961 Act and Rule 3(1) and (2) of the 1964 Rules. The Consolidation Act or the scheme framed thereunder does not place any fetter upon the power of the Gram Panchayat to use its land for benefit of residents of the village. It is further argued that the mere assigning of a particular common purpose, during consolidation or otherwise would not prohibit a Gram Panchayat from altering its user in accordance with common purposes set out in Rule 3(2) of the 1964 Rules particularly when cultivation is a common purpose set out in Rule 3 (2)(i) of the 1964 Rules. It is further submitted that the issues raised in the present petition are no longer res integra as they have already been answered in the following judgments:- Salig Ram and others Vs. Maksudan Singh and others, 1965 Current Law Journal 711, Khushi Puri and others Vs. State of Haryana and others (DB), 1978 PLJ 78, Bishamber Dayal Vs. State of Haryana and others, 1986 PLJ 200, Shish Ram Vs. State of Haryana, 2000(2) PLJ 72, Jagdish Singh Vs. State of Haryana and others, 2005 (4) RCR (Civil) 322 (DB) by holding that the Gram Panchayat is entitled to alter the user of land in Shamilat land. It is further argued by reference to these judgments that as the right of the Gram Panchayat to alter the user of its land has been upheld, the writ petitions should be dismissed. I have heard counsel for the parties, perused the statutory provisions of the Consolidation Act, the Rules framed thereunder and the provisions of the 1961 Act and the 1964 Rules. A Gram Panchayat is a legal entity, capable of holding and dealing with its property in the manner prescribed by the 1961 Act and the 1964 Rules. A Gram Panchayat holds property in the shape of land that includes roads, paths, drains, village wells, ponds, water tanks, water CWP No.13652 of 2009 6 courses, bus stands,waiting places, grazing grounds, manure pits and cultivable land, to name only a few. The question that arises for adjudication is, whether a Gram Panchayat can alter the user of “grazing grounds” to other uses particularly for cultivation. Before proceeding to answer this question, it would be appropriate to deal with the nature of common land prior to and after the enactment of the Consolidation Act, the provisions of the 1961 Act, the Rules framed under these enactments, the mode and manner of creation of common land, the vesting of such land in a Gram Panchayat and the power of the Gram Panchayat to deal with this land. Prior to the enactment of the Consolidation Act, "common lands", known as "Shamilat Deh", were held in common by the proprietary body. of a revenue estate. Though ownership in Shamilat Deh land vested in the proprietors but its user was not necessarily confined to proprietors. The right to use such land depended upon its nature and the entry in the “Sharat Wajib Ul-Aarz” ( the laws of a village). With the enactment of the Consolidation Act, in the year 1948. “common lands” and “common purposes” received statutory recognition under section 2(bb) of the Consolidation Act. Section 2(bb) of the Consolidation Act, which defines “common purposes” reads as follows :- Section 2(bb) of the Consolidation Act reads as follows :- Section 2. Interpretation – (a) XXX XXX XXX (b) XXX XXX XXX (bb) “common purpose” means any purpose in relation to any common need, convenience or benefit of the Village and includes the following purposes :- (i) extension of the village abadi. CWP No.13652 of 2009 7 (ii)Providing income for the Panchayat of the village concerned for the benefit of the village community. (iii)Village roads and paths; village drains, village well, ponds or tanks, village water courses or water channels, village bus stands and waiting places, manure pits, hada rori, public latrines, cremation and burial grounds, Panchayat Ghar, Janj Ghar, grazing grounds, tanning places, mela grounds, public places of religious or charitable nature; and (iv)schools and play grounds, dispensaries, hospitals and institutions of like nature; water works or tube wells may be managed and controlled by the State Government or not.” The expression “common purposes” denotes any purpose relating to the common need, convenience and benefit of the village community and includes amongst others land to be reserved for grazing grounds. Sections 18 and 23-A of the Consolidation Act which provide for reservation management and control of common lands read as follows : Section 18. “Lands reserved for common purposes – Notwithstanding anything contained in any law for the time being in force, it shall be lawful for the consolidation Officer to direct - (a) that any land specifically assigned for any common purpose shall cease to be so assigned CWP No.13652 of 2009 8 and to assign any other land in its place; (b) that any land under the bed of a stream or torrent flowing through or from the Shiwalik mountain range within the State shall be assigned for any common purpose; (c ) that if any area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the the land so reserved is inadequate, to assign other land for such purpose.” Section 23-A. “Management and control of lands for common purposes to vest in Panchayats or State Government – As soon as a scheme comes into force the management and control of all lands assigned or reserved for common purposes of the village under Section 18 - (a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of Section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government and (b) in the case of any other common purpose, shall vest in the Panchayat of that village and the State Government or the Panchayat, as the case may be shall be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interests of the owners of such land shall stand modified and extinguished accordingly; Provided that in the case of land assigned or reserved CWP No.13652 of 2009 9 for the extension of village abadi or manure pits for the proprietors and non-proprietors of the village, such land shall vest in the proprietors and non proprietors to whom it is given under the scheme of consolidation.” Section 18 of the Consolidation Act requires that consolidation authorities shall, during consolidation, reserve land for common purposes of a village. Section 23-A(b) of the Consolidation Act, provides that in case of common purposes other than those reserved for the State Government, the land shall vest in the Gram Panchayat and all rights and interest of owners of such land shall stand modified and extinguished accordingly. Common land that is used or reserved as a grazing ground is called “Charand” or “Charagah” and is more often than not used by the entire village community. Admittedly, the land in dispute was reserved as a grazing ground, under a scheme prepared during consolidation and entitled the inhabitants of the village to use the land for grazing their cattle etc. Apart from the vesting of common land provided by Section 23- A(b) of the Consolidation Act, land reserved and used as a grazing ground (Charand) vests in a Gram Panchayat, as Shamilat Deh, by virtue of Section 2(g)(1) of the 1961 Act. It would, therefore, be appropriate, to reproduce a relevant extract from Section 2(g)(1) of the 1961 Act. Section 2(g)(1) of the 1961 Act reads as follows :- Section 2(g) “Shamilat deh” includes - (1) lands described in the revenue records as Shamilat deh or Charand excluding abadi deh ; Other than land that came to vest in a Gram Panchayat, under the Consolidation Act and under the 1961 Act, there is another variety of common land, created under Rule 16 (ii) of the Consolidation Rules, CWP No.13652 of 2009 10 where ownership of the land so reserved continues to vest in the proprietors but its management and Control vests in a Gram Panchayat. Rule 16(ii) provides that where Shamilat Deh, in a village is inadequate, land shall be reserved “.......for the Gram Panchayat and for other common purposes of the village.....” by applying a pro-rata cut on the holding of proprietors. The land so reserved is known as Jumla Mushtarka Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba (in short Jumla Mushtarka Malkan). The ownership in Jumla Mushtarka Malkan vests in the proprietors whereas its management and control rests with the Gram Panchayat. Rule 16(ii) of the Consolidation Rules reads as follows :- “Rule 16 (i) XXX XXX XXX (ii) In an estate or estate where during consolidation proceedings there is no shamilat deh land or such land is considered inadequate, land shall be reserved for the village Panchayat and for other common purposes, under Section 18(c) of the Act, out of the common pool of the village at the scale given in the schedule to these rules. Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi of proprietors and non-proprietors) shall vest in the proprietary body of the estate or estates concerned and it shall be entered in the column of ownership of record of rights as (Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad Raqba). The management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary body and the Panchayat shall have the right to utilise the income CWP No.13652 of 2009 11 derived from the land so reserved for the common needs and the benefits of the estates concerned.” The 1961 Act, as originally enacted did not include “Jumla Mushtarka Malkan” land in the definition of Shamilat Deh but a subsequent amendment enacted by Haryana Act No.9 of 1992 (reproduced in the earlier part of the judgment) provides that land reserved under Sections 18 and 23-A of the Consolidation Act, by applying a pro rata cut on the holdings of the proprietors, shall be Shamilat Deh. Section 2(g)(6), introduced by Act No. 9 of 1992 reads as follows:- Section 2(g) “Shamilat deh” includes - (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. The vires of Section 2(g)(6) came up for consideration before Full Bench of this Court in Jai Singh and others Vs. State of Haryana 2003(2)PLR 658 and were upheld by holding that Section 2(g)(6) is a mere elucidation of the already existing provisions of the Consolidation Act and Rules. In addition to land reserved and created during consolidation, there were other common lands, in existence prior to the Consolidation Act and the 1961 Act, called Shamilat Deh, Shamilat Patti, Shamilat Panna, Shamilat Thola, Shamilat Tikkas, ponds, river beds open land within Abadi, land described as banjar qadim but used as per the revenue record for common purposes of the village etc. which have come to vest CWP No.13652 of 2009 12 in a Gram Panchayat in accordance with and to the extent provided by the Punjab Village Common Lands (Regulation) Act, 1954, and the 1961 Act. A conjoint appraisal of Section 2(bb), Sections 18 and 23-A of the Consolidation Act, Rule 16(ii) of the Consolidation Rules, Sections 2(g)(1) and 2(g)(6) of the 1961 Act, makes it abundantly clear that land used for common purposes before consolidation, land reserved during consolidation for common purposes and land declared as Shamilat Deh under the 1961 Act, vests in a Gram Panchayat or the State Government, depending upon its nature and to the extent of vesting provided by these enactments. After having set out the nature of common land, it would be appropriate to ascertain whether the Consolidation Act or the Rules, the 1961 Act or the 1964 Rules empower a Gram Panchayat to alter the nature of its common land and conversely whether they prohibit a Gram Panchayat from altering its nature. A natural incident of ownership is the right to deal with one's property without any fetter, let or hindrance, except to the extent prohibited by law. The right to deal with one's property inhers a right to alter its user, subject however, to any impediment placed by any statutory prohibition. Admittedly, the Gram Panchayat is the owner of the land reserved/used as a grazing ground (Charand) and therefore is entitled to use its land in such manner as it deems appropriate subject, however, to any statutory impediment or statutory provision that prescribes the mode and manner of its use. Regulation of the use of common land is governed by Sections 5 and 5-A of the 1961 Act, read alongwith Rules 3 and 8 of the 1964 Rules. Section 5 of the 1961 Act, titled as “Regulation of use and occupation etc. of lands vested or deemed to have been vested in CWP No.13652 of 2009 13 Panchayts” reads as follows :- Section 5. Regulation of use and occupation etc. of lands vested or deemed to have been vested in Panchayats – (1) All lands vested or deemed to have been vested in a Panchayat under this Act, shall be utilised or,disposed of by the Panchayat under this Act, shall be utilised or, disposed of by the Panchayat for the benefit of the inhabitants of the village concerned in the manner prescribed; Provided that where two or more villages have a common Panchayat, shamilat deh of each village shall be utilised and disposed of by the Panchayat for the benefit of the inhabitants of that village; Provided further that where there are two or more shamilat tikkas in a village,the shamilat tikka shall be utilised and disposed of, by the Panchayat for the benefit of the inhabitants of that tikka; Provided further that where the area of land in shamilat deh of any village, so vested or deemed to have been vested in a Panchayat is in excess of twenty five per cent of the total of that village (excluding abadi deh), then twenty five percent of such total area shall be left to the Panchayat and out of the remaining area of shamilat deh, an area upto the extent of twenty five percent of such total area shall be utilised for the settlement of landless tenants and other tenants ejected or to be ejected of that village and the remaining area of shamilat deh, if any, shall be utilised for distribution to small land owners of that village subject to the CWP No.13652 of 2009 14 provisions relating to permissible area under the Haryana Ceiling on Land Holdings Act, 1972, by the Assistant Collector of the first grade in consultation with the Panchayat in such manner and on payment of such amount as may be prescribed. 2. The area of shamilat deh to be utilized for the purposes of the third proviso to sub-section (1) shall be demarcated by such officer in consultation with the Panchayat and in such manner as may be prescribed. 3. The State Government or any officer authorised by it in this behalf may, from time to time, with a view to ensuring compliance with the provision of the second proviso to sub-section (1) or sub-section (2) issue to any Panchayat such directions as may be deemed necessary. 4. Nothing contained in the third proviso to sub- section (1) and in sub-section (2) and sub-section (3) shall apply to the “hilly area”. 5. Notwithstanding anything contained in this section, if in the opinion of the State Government, it is necessary to take over, to secure proper management for better utilisation for the benefit of the inhabitants of the village concerned any shamilat deh, the Government may by notification take over the management of such shamilat deh for a period not exceeding twenty years; 6. The income from the shamilat deh, the management of which is taken over under sub-section (5), after meeting all charges relating or incidental to the management