CWP No.3182 of 1988 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 3182 of 1988 (O&M) Date of decision: 23.2.2011 Daulat and others …..Petitioners vs. Commissioner, Ambala Division, Ambala and ors …..Respondents CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Rahul Sharma, Advocate for the petitioners Mr. K.C. Bhatia, Addl. AG, Haryana for respondents No. 1 to 3. Mr. Jaswant Jain, Advocate for respondent No. 4. HEMANT GUPTA, J Challenge in the present writ petition is to the order passed by learned Collector on 27.10.1987 (Annexure P-2) in exercise of the powers under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the ‘Act’) and the order in revision passed by learned Commissioner on 27.12.1987 (Annexure P-3), dismissing the revision filed by the petitioner in limine. Earlier, Gram Panchayat filed a petition against the present petitioners for their eviction under Section 7 of the Act from the land measuring 4 kanals 16 marlas. Such petition was allowed by the learned Assistant Collector, Ist Grade, Naraingarh on 29.9.1976. The order passed was affirmed in appeal by learned Collector on 1.8.1978. The writ petition No. 4297 of 1978 filed by the petitioner-Daulat Ram challenging the aforesaid orders was decided by this Court on 5.11.1985. This Court quashed the order of ejectment in respect of land measuring 1 kanals 16 marlas comprising in Khasra no. 11/3/1 whereas the ejectment order in respect of the remaining 2 kanals 2 marlas was maintained with the 1 CWP No.3182 of 1988 further direction that the penalty @ Rs. 600/- per acre shall be payable on the proportionate land i.e. 2 kanals 2 marlas. It is alleged by the respondent herein that Letters Patent Appeal filed against the said orders was also dismissed. Therefore, the Gram Panchayat filed a petition under Section 13-A of the Act claiming title in respect of the land measuring 40 kanals 12 marlas. In the said petition, Gram Panchayat produced evidence including the Jamabandi for the year 1984-85 (Ex. P-I). Learned Assistant Collector dismissed the petition after a finding was returned that from the sharat wajib-ul-arj, no Shamlat land was found to be in existence. In respect of the issue No. 2, the Assistant Collector held to the following effect: - “I have heard the learned counsel for both the parties and also have perused the record and I have come to this conclusion that this land comes under Section 16(II) and or Section 23(A) of the East Punjab Consolidation Holding Fragmentation Act, 1954. This land was reserved for common purposes and the Management of this land is to be done by Panchayat but in view of the fact the land is kept for common purposes this does not come within the definition of Shamlat deh under Section 2(g).” The petitioner was ordered to be ejected from the land bearing Khewat Khatuni No. 23/71 Khasra No. 11/3//2 and 9/2 being an unauthorized occupant as per the findings recorded by High Court in Section 7 proceedings in an appeal filed by the Gram Panchayat. Apart from the said land, Khewat Khatuni No. 23/80 Khasra No. 36 was found to be reserved for School; Khewat Khatuni No. 24 as gair mumkin graveyard; 23/81 Khasra No. 23,25,33/2,34; Khewat Khatuni No. 23/82 sarbrah Rafa-e-am (main passage), Khewat Khatuni No. 23/83 Khasra No. 10/27 gair mumkin well and Khasra No. 32 as gair mimkin Mandir and Khewat Khatuni No. 23/84 Khasra No 10/13//1,11//2/2//1; 2/2//2; 26/2 min, 2 CWP No.3182 of 1988 38,46, 51/1//2; 56/2, 56/2, 65/2, 76/2,80/2,85/2,86/2,87, 88/2,89/2,90/2,91/2 shara-e-am gair-mumkin rasta (public passage). The Collector found that the land of well, temple and the passage vests in Gram Panchayat being Shamlat Deh within Section 2(g) of the Act. It was also held that the Gram Panchayat has not produced any record in respect of vesting of land comprising in Khewat Khatuni No. 23/78 Khasra No. 26/2 min, 35, 36 min in the Gram Panchayat. It was also held that the land reserved for expansion of abadi deh does not vest in Gram Panchayat. Reliance is placed upon a judgment of this Court 1983 PLJ 76, Dharam Singh and ors vs. Ram Dia and ors. Consequently, the petition filed by Gram Panchayat under Section 13-A was partly allowed. The revision filed by the petitioner against the said order was dismissed in limine. Learned counsel for the petitioners has vehemently argued that the land described in the revenue record i.e. Jamabandi for the year 1884-85 (Ex. P-1) as Mustarka Malkan does not vest in Gram Panchayat even though the management and control of the aforesaid land vests with Panchayat in terms of Section 23 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short the ‘1948 Act’). Therefore, the order passed by learned Collector is not sustainable as the land so described does not fall within the definition of Shamlat Deh in Section 2(g) of the Act. On the other hand, learned counsel for the Gram Panchayat has vehemently argued that the land was reserved during the consolidation proceedings for the benefit of the village community; therefore, it would fall within the definition of Shamlat Deh as defined in Section 2(g) of the Act. It is contended that after the insertion of sub clause 6 in Section 2(g) of the Act by Haryana Act 9 of 1992, the issue stands clarified that such land would vest in the Gram Panchayat. It is further argued that the legality of the amendment carried out by Haryana 3 CWP No.3182 of 1988 Act No. 9 of 1992 was examined by the Full Bench of this Court in 2003(3) PLR658 Jai Singh vs. State of Haryana, wherein it has been held that: “(62) In view of the discussion made above, we hold that: - i) sub-section(6) of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the explanation appended thereto, is only an elucidation of the existing provisions of the said Act read with provisions contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948; ii) the un-amended provisions of the Act of 1961 and, in particular, Section 2(g)(1) read with Sections 18 and 23- A of the Act of 1948 and Rule 16(ii) of the Rules of 1949 cover all such lands which have been specifically earmarked in a consolidation scheme prepared under Section 14 read with Rules 5 and 7 and confirmed under Section 20, which has been implemented under the provisions of Section 24 and no other lands; iii) the lands which have been contributed by the proprietors on the basis of pro-rata cut on their holdings imposed during the consolidation proceedings and which have not been earmarked for any common purpose in the consolidation scheme prepared under Section 14 read with Rules 5 and 7 and entered in the column of ownership as Jumla Mustarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, shall not vest with the Gram Panchayat or the State Government, as the case may be, on the dint of sub section (6) of Section 2(g) and the explanation appended thereto or any other provisions of the Act of 1961 or the Act 1948; iv) all such lands, which have been, as per the consolidation scheme, reserved for common purposes, whether utilized or not, shall vest with the State Government or the Gram Panchayat, as the case may be, even though in the column of ownership of entries may be Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat etc.” It is pleaded by the petitioners in para 8 of the writ petition that as per the revenue record, the land shown as Mustarka Malkan is under the management of Gram Panchayat under Section 16(2) of the 1948 Act. It was pleaded as under: - 4 CWP No.3182 of 1988 “That according to the revenue record, the land was shown as mustarka malkan under the management of Panchayat and this was done under Section 16(2) of the East Punjab Consolidation Act which was taken from the share holders for common purpose.” The extract of consolidation scheme under Sr. No. 6 is to the effect that the land is being reserved for common purposes by applying pro-rata cut. I have heard learned counsel for the parties and do not find any merit in the present petition. It is the pleaded case of the petitioner that the land is under the management of Gram Panchayat in terms of Section 16(2) of the1948 Act. The learned Assistant Collector has returned a finding that the land was reserved for common purposes during consolidation and the management is with the Gram Panchyat. The claim of the Gram Panchayat was declined by the learned Assistant Collector for the reasons that the land is not a Shamlat Deh within the meaning of Section 2(g) of the Act. The issue whether such land, reserved for common purposes in a consolidation scheme would vest with Gram Panchayat was sought to be clarified by an enactment of Haryana Act No. 9 of 1992 when it inserted the following clause : - “2(g)(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’, shall be shamlat deh within the meaning of this Section”. The Full Bench of this Court in Jai Singh’s case (supra) has considered the effect of insertion of sub-Section 6 in Section 2(g) of the Act and held that such amendment is by way of elucidation of the existing 5 CWP No.3182 of 1988 provisions and such land would vest with Gram Panchayat. In view of the said fact, the land in dispute vests with Gram Panchayat having reserved for common purpose in consolidation scheme. The land not reserved for common purposes after applying the pro-rata cut on the holdings of proprietors alone falls within the third finding recorded in Jai Singh’s case (supra) The consolidation scheme and the amendment carried out by the Haryana Act No. 9 of 1992, leads to irresistible conclusion that the land in dispute vests with the Gram Panchayat as Shamlat Deh. Consequently, I do not find any merit in the present petition. Dismissed. (HEMANT GUPTA) JUDGE 23.2.2011 preeti 6