IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13580 of 2006 Date of decision : 4.9.2009 Basant Singh and Others ….. Petitioners Versus Gram Panchayat of Village Ralla and Others ….. Respondents Present: Mr. Amarjit Markan, Advocate for the petitioners. Mr. Balbir Singh Sewak, Advocate for respondent No.1. Mr. H.S. Gill, DAG, Punjab. **** S.S. SARON, J. The petitioners Basant Singh, Saudagar Singh and Jangir Kaur have filed the present petition under Articles 226/227 of the Constitution of India seeking quashing of the order dated 16.7.2004 (Annexure P1) passed by the Deputy Commissioner (exercising the powers of Commissioner under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973. (“P.P. Act” – for short), Mansa (respondent No.3) and the order dated 11.5.2001 (Annexure P3) passed by the Collector (District Development and Panchayat Officer), Mansa (respondent No.2). The consolidation proceedings in village Ralla Tehsil Mansa District Bhatinda (now Distt. Mansa) were carried out in 1962-63. Hazura Singh, the grandfather of Basant Singh (petitioner No.1) and Saudagar Singh @ Leela Singh (petitioner No.2) sons of Mohinder Singh and father-in-law of Jangir Kaur (petitioner No.3) widow of Mohinder Singh, was shown as khewatdar at serial No.13 during consolidation proceedings and Khewat No.1011 was allotted to him and his brother Harchand Singh alias Ghotta Singh according to the Jamabandi for the year 1962-63 (Annexure P6). The land measuring 39 kanals 3 marlas which is subject matter of dispute was allotted to Jumla Mushtarka Malkan according to the Consolidation Scheme. According to the petitioners, the land of the Jumla Mushtarka Malkan was never CWP No.13580 of 2006 [2] utilized or kept reserved for common purposes but was cultivated by Hazura Singh, grandfather of petitioners No.1 and 2 and father-in-law of petitioner No.3, as Khewatdar. Mutation No.9380 relating to land measuring 1876 kanals 16 marlas was sanctioned on 7.6.1964 in favour of Gram Panchayat in pursuance of letter dated 22.9.1961 of the Deputy Secretary, Revenue Chandigarh. The Gram Panchayat village Ralla (respondent No.1) on 21.7.1975 filed an application (Annexure P7) under the P.P. Act seeking eviction of Mohinder Singh son of Hazura Singh (predecessor-in-interest of the petitioners) from the land measuring 41 kanals 3 marlas, which includes the land measuring 39 kanals 3 marlas. A reply dated 7.8.1995 (Annexure P8) was filed by Mohinder Singh, the predecessor-in-interest of the petitioners, to the said application of the Gram Panchayat village Ralla (respondent No.1). The District Development and Panchayat Officer (exercising the powers of the Collector under the P.P. Act) allowed the application of the Gram Panchayat on 28.6.1976. Appeal against the said order was dismissed by the Commissioner under the P.P. Act on 14.11.1979. Mohinder Singh (predecessor-in-interest of the petitioners) aggrieved against the said orders dated 28.6.1976 and 14.11.1979 filed CWP No.1203 of 1980 in this Court and this Court vide order dated 18.3.1992 (Annexure P4) observed that in para 10 of the petition, the petitioner Mohinder Singh (in the said petition) had drawn the attention of the Court to letter dated 22.9.1961 which is said to have been taken into account while sanctioning mutation in favour of Gram Panchayat (respondent No.1). The argument raised by the learned counsel for the petitioner Mohinder Singh in the said petition was that the said letter dated 22.9.1961 could not have formed the basis for making a change in the revenue record and the change, if any, should have been made on the basis of some independent evidence. The aforesaid averments, it was observed, made by the petitioner Mohinder Singh in para 10 of the petition had not been denied in a specific manner by the Gram Panchayat (respondent No.1) in its reply. Accordingly, this Court was of the view that the orders under challenge in the said petition were not sustainable. The contention raised on behalf of the petitioner Mohinder Singh in the said petition was that as a dispute with regard to title existed between the parties, such dispute should be permitted to be CWP No.13580 of 2006 [3] raised under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 was also noticed. This Court was, however, of the view that the said matter was for the authorities under the Act to determine on an application made to them. The writ petition i.e. CWP No.1203 of 1980 was accordingly allowed vide order dated 18.3.1992 (Annexure P4). The impugned orders were quashed and the matter was remitted for fresh decision to the Collector. The Gram Panchayat (respondent No.1) instead of pursuing the petition in pursuance of the order of remand dated 18.3.1992 (Annexure P4) passed by this Court, filed a fresh application under the P.P. Act on 25.11.1994 seeking eviction of the petitioners from the land measuring 39 kanals 3 marlas situated in village Ralla on the basis of Jamabandi for the year 1990-91. A detailed reply dated 10.4.1995 was filed by Mohinder Singh the predecessor- in-interest of the petitioners. The second application filed by the Gram Panchayat Ralla was allowed by the Collector on 31.3.1997. The predecessor-in-interest of the petitioners aggrieved against the same filed an appeal before the Commissioner, Faridkot. The learned Commissioner vide order dated 28.7.1998 (Annexure P5) set aside the order dated 31.3.1997 passed by the Collector. While passing the order dated 28.7.1998 (Annexure P5), the Commissioner, Faridkot noticed the order dated 18.3.1992 (Annexure P4) passed by this Court in CWP No.1203 of 1980. The appeal was allowed and the matter was remanded to the Collector to pass a fresh order after giving adequate opportunity to both the parties to adduce evidence. The Collector (respondent No.2) vide order dated 11.5.2001 (Annexure P3) on remand from the Commissioner again allowed the second application filed by the Gram Panchayat (respondent No.1). Thereafter, the Gram Panchayat (respondent No.1) in pursuance of report No.492 dated 6.8.2001 took possession of the land in execution of the order dated 11.5.2001 (Annexure P3) passed by the Collector. The possession of the land was taken from Mohinder Singh. Mohinder Singh (predecessor-in-interest of the petitioners) had in fact already filed an appeal on 26.6.2001 against the order dated 11.5.2001 (Annexure P3). His counsel also filed written arguments. The Deputy Commissioner Mansa exercising the powers of Commissioner under the P.P. Act, however, dismissed the appeal filed by Mohinder Singh vide order dated 23.10.2001 (Annexure P11). Mohinder Singh aggrieved against the order CWP No.13580 of 2006 [4] dated 23.10.2001 (Annexure P11) filed CWP No.9342 of 2002 in this Court seeking quashing of the orders dated 23.10.2001 (Annexure P11) passed by the Commissioner and the order dated 11.5.2001 (Annexure P3) passed by the Collector. The said writ petition was allowed by this Court vide order dated 18.9.2003 (Annexure P2) and the matter was remitted to the appellate authority i.e. the Commissioner to pass a fresh order. The counsel for Mohinder Singh in the said petition had submitted detailed arguments before the appellate authority i.e. the Deputy Commissioner, Mansa (exercising the powers of Commissioner). The appellate authority i.e. the Commissioner (respondent No.3) vide order dated 16.7.2004 (Annexure P1) dismissed the appeal filed by Mohinder Singh (predecessor-in-interest of the petitioners). Mohinder Singh met with an accident on 12.9.2005 and he died on 12.2.2006. The petitioners, who are the successors-in-interest of Mohinder Singh, aggrieved against the said order have filed the present petition. Mr. Amarjit Markan, Advocate learned counsel appearing for the petitioners has contended that the Gram Panchayat, Ralla (respondent No.1) has no locus standi to seek eviction of the petitioners from the land in dispute which is described in the ownership of Jumla Mushtarka Malkan and the Makbuja Jumla Mushtarka Malkan are in possession thereof. It is submitted that the said land was never used for any common purposes and the Gram Panchayat, Ralla (respondent No.1) has no right to the same. Mr. Balbir Singh Sewak, Advocate, learned counsel appearing for respondent No.1 Gram Panchayat has submitted that the Gram Panchayat village Ralla (respondent No.1) is the owner of the land and mutation No.9380 was sanctioned in its favour on 07.6.1964 on the basis of letter dated 22.9.1961 from the Deputy Secretary Revenue Chandigarh. Thereafter, possession of the land was taken on 6.8.2001 and report No.492 in this regard was recorded. It is submitted that the Gram Panchayat is the owner of the land which is used for common purposes and the khasra girdwari has been recorded in favour of the Gram Panchayat. The Gram Panchayat has been auctioning the land and using the same for common purposes. I have given my thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the records of the case. It may be CWP No.13580 of 2006 [5] noticed that the dispute in the case relates to land measuring 39 kanals 3 marals situated in village Ralla which is comprised in rectangle and killa Nos.22//8 (5-11), 9 (4-15), 10/1 (3-2), 12/1 (1-14), 13(3-5), 42//4/2 (3-3), 47//11/4(6-0), 12/2 (2-13), 19 min (6-0), 20/1/2 (3-0). In respect of the said land, it may be noticed that in terms of the Jamabandi for the year 1962-63 (Annexure P21) which is the ‘missal haquiat’, that is, the first Jamabandi after the consolidation proceedings, the land insofar as 39 kanals 3 marlas is concerned has been recorded as follows:- Jamabandi for the year 1962-63 of village Ralla, Tehsil Mansa District Bhatinda. Khe wat or Jama bandi No. Kha tuni No. Name of Tarf or Patti with name of the Lambardar Name of owner descrip tion Name of the cultivator with descrip tion Well or other sources of irriga tion Khasra No. and Killa No. Area with kind of land Rent paid by the tenant rate and amo unt Share of measure or rights and rule of Bachh Dem and with detail or reve nue and cases Remarks Last Band o Bast No. Prese nt Band obast 1314 1516 Patti Mushtarka Malkan Jumla Mush- tarka Malkan Makbuza Numla Mush- tarka Malkan - 1243 min 22//8 5-11 Banjar Qadim Kabza Bachh Bahsra Khewa t No.1 Revenue 226-31 - Note:- vide No. 9380, the ownership of khasra No.22//8-9, 10/1, 12 42//4/2, 22//13 has been transferred in the name of Gram Panchayat 1244 1245 min 9 4-15 Banjar Qadim 1244 min 10/1 3-2 Banjar Qadim 1244 min 12 min 1-14 Banjar Qadim 1246 min 42//4/ 2 3-3 Maru Kitte 5 18-5 Banjar Qadim 15-2 Maru 3-3 1314 1516 - Jumla Mush- tarka Malkan Maqbuza Jumla Mush- tarka Malkan - 1243 min 22//13 3-5 Banjar Qadim - - - - CWP No.13580 of 2006 [6] 1040 1219 Patti Mal Kehar Singh, Mehar Singh, Sher Singh, Ajmer Singh sons of Rur Singh son of Gurmukh Singh in equal share residents of Deh Khud kasht 1260 1258 Min 1460 1475 1458 min 1463 1464 1458 Min 1450 1466 1455 1458 Min Rect angle No. 47// 11 min (6-0) 12 min (2-13) 19 min (8-0) 20 min ( 3-0) - Posses sion as per Bachh Khe wat No.1 Revenue 46-31 - Note:- Transfer Mutation No.9384 47//11/4 (6-0), 12/2 (2-13), 19 (8-0), 20/1/2 (3-0) Total – 19 kanals 13 marlas is sanctioned in favour of the Jumla Mushtarka Malkan (19- 13) A perusal of the above shows that the land is mostly recorded as Banjar Qadim and ‘Maru’. The land which is recorded as Banjar Qadim in the revenue records is to be treated as shamlat deh only if it is used for common purposes in view of the provisions of Section 2(g)(5) of the Punjab Common Lands (Regulation) Act, 1961 which reads as follows:- “2(g) Shamlat Deh includes:- (1) to (4) x x x x (5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records;” A perusal of the above shows that the land recorded as ‘Banjar qadim’ in the revenue records and used for common purposes of the village is shamlat deh. The land in dispute to a substantial extent i.e. measuring 21 kanals 10 marals though recorded as Banjar Qadim but is not shown to be used for common purposes. Besides, the land in Rectangle No.22, Khasra Nos.8, 9, 10/1, 12 min and Rectangle No.42 Khasra No.4/2 measuring 18 kanals 5 marlas and land in rectangle No.22 khasra No.13 measuring 3 kanals 5 marlas is recorded in the ownership and possession of Jumla Mushtarka Malkan. The land in Rectangle No.47, Khasra Nos.11 min, 12 min, 19 and 20 measuring 19 kanals 13 marlas is recorded in the names CWP No.13580 of 2006 [7] of in possession of Kehar Singh, Mehar Singh, Sher Singh and Ajmer Singh sons of Rur Singh son of Gurmukh Singh. Thereafter, in the remarks column it is mentioned that the said land has been transferred vide mutation No.9384 in favour of the Jumla Mushtarka Malkan. It may be noticed that vide mutation No.9280 the ownership of land in Rectangle No.22, Khasra Nos.8, 9, 10/1, 12 and 13; besides, Rectangle No.42, Khasra No.4/2 has been transferred in favour of the Gram Panchayat. The said transfer in favour of the Gram Panchayat in respect of the aforesaid land is in pursuance of letter dated 22.9.1961. It may be noticed that vide order dated 18.3.1992 (Annexure P4) passed in CWP No.1203 of 1980 i.e. in the earlier petition filed by Mohinder Singh, the pre-decessor-in-interest of the petitioners, the attention of the Court was drawn to letter dated 22.9.1961 which was taken into account while sanctioning the mutation in favour of the Gram Panchayat. The argument raised by the learned counsel for the petitioner was that the said letter could not have formed the basis for making a change in the revenue record and the change if any should have been made on the basis of some independent evidence. The said averments made by the petitioner in para 10 of the said petition i.e. CWP No.1203 of 1980 were not denied in a specific manner by the respondent-Gram Panchayat in its reply. It is therefore that the orders earlier passed in favour of the Gram Panchayat were quashed by this Court. Even otherwise, this Court has observed in Mohinder Singh v. Commissioner Ferozepur Division, Ferozepur, 1992 PLJ 711 that change in favour of the Gram Panchayat cannot be made only on the basis of a Government letter. The change of ownership on the basis of a government letter was held to be not sustainable. It may be noticed that a letter written by the Government cannot be the basis or foundation for change of a revenue records by entering a mutation. Title cannot be conferred on the Gram Panchayat only on the basis of a letter. It is liable to be shown as to how the land owned by the Jumla Mushtarka Malkan was divested of its proprietary and ownership rights and the same were transferred in the name of the Gram Panchayat. Mutation of the property in the revenue records as is well-known does not create or extinguish a title nor does it have any presumptive value of title. It only enables the person in whose favour mutation is ordered, to pay land revenue in question. Therefore, by mere sanction of mutation and that too on the basis CWP No.13580 of 2006 [8] of a Government letter the Jumla Mushtarka Malkans are not divested of its proprietary rights. In Jai Singh v. State of Haryana, (2003-2) PLR 658 a Full Bench of this Court considered the effect of insertion of sub-clause (6) to Section 2(g) of the Punjab Village Common Lands (Regulations) Act, 1961 (as applicable in the State of Haryana) (“Village Common Lands Act” – for short). In terms of Section 2(g) (6) the land reserved for common purpose of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (“Consolidation Act” – for short), the management and control whereof vests in the Gram Panchayat under Section 23-A of the Consolidation Act were included in the definition of Shamlat Deh. In terms of the ‘Explanation’ to Section 2(g)(6) of the Village Common Lands Act, it was envisaged that lands entered in the column of ownership of record of rights as “Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Aarazi Khewat’ shall be shamlat deh within the meaning of Section 2(g)(6) of the Village Common Lands Act. In other words, all lands in the revenue records which are mentioned as ‘Jumla Mushtarka Malkans Wa Digar Haqdaran Hasab Rasad Aarazi Khewat’, ‘Jumla Malkan’ or ‘Mushtarka Malkan’ were to be shamlat deh and consequently were to vest in the Gram Panchayat in view of Section 4 of the Village Common Lands Act. The said Clause (6) to Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the ‘Explanation’ appended thereto it was held was only an elucidation of the existing provisions of the said Village Common Lands Act read with provisions contained in the Consolidation Act. Besides, the un-amended provisions of the Village Common Lands Act and in particular Section 2(g)(1) read with Sections 18 and 23-A of the Consolidation Act and Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (“1949 Rules” – for short) cover all such lands which have been specifically earmarked in the Consolidation Scheme prepared under Section 14 of the Consolidation Act read with Rules 5 and 7 of the 1949 Rules and confirmed under Section 20 of the Consolidation Act which has been implemented under the provisions of Section 24 of the Consolidation Act and no other lands. In other words, it is only those such lands which were reserved for common purposes in the Consolidation Scheme and which are recorded in the name of the Jumla Mushtarka Malkan are CWP No.13580 of 2006 [9] to vest in the Gram Panchayat as the Gram Panchayat, in any case, is entitled to management and control of the same in terms of Sections 18 and 23-A of the Consolidation Act. However, it was held that the lands which have been contributed by the proprietors on the basis of pro-rata cuts on their holdings imposed during consolidation proceedings and which have not been earmarked for any common purpose in the Consolidation Scheme prepared under Section 14 of the Consolidation Act read with Rules 5 and 7 of the 1949 Rules and entered in the column of ownership as ‘Jumla Mushtarka Malkans Wa Digar Haqdaran Hasab Rasad Aarazi 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 explanation appended thereto or any other provision of the Village Common Lands Act or the Consolidation Act. All such lands which have been as per the Consolidation Scheme, reserved for common purposes, whether utilized or not, are to vest with the State Government or the Gram Panchayat as the case may be even though in the column of ownership, the entries may be that of ‘Jumla Mushtarka Malkans Wa Digar Haqdaran Hasab Rasad Aarazi Khewat’ etc. Therefore, for the land to vest in the Gram panchayat it is liable to be shown that the land which is recorded in the name of Jumla Mushtarka Malkan was reserved for common purposes in the Consolidation Scheme. There is nothing on the record to show that the land in question during consolidation operation was reserved for common purposes so as to vest the same in the Gram Panchayat. The ‘missal haquiat’ i.e. Jamabandi for the year 1962-63 which has been reproduced above does not show that the land was reserved for common purposes and neither does it show that it was ever used for common purposes. Such land, therefore, is to vest in the Jumla Mushtarka Malkan and not in the Gram Panchayat. Learned State counsel has produced the photostat copy of ‘missal haquiat’ which is taken on record and marked as ‘mark-A’; besides, he had produced the Photostat copy of mutation No.9380 which is also taken on record and marked as ‘mark-B’. The said documents also do not show that the land was used for common purposes. Rather the mutation No.9380 (mark-B) shows that the mutation has been changed in view of the Government letter No.6658 CWP No.13580 of 2006 [10] R-II 6239-57 dated 22.9.1961 from the Deputy Secretary Revenue, Chandigarh. However, as to what is the foundation or the basis of the letter regarding transfer in favour of the Gram Panchayat has not been mentioned. It is merely the said letter dated 22.9.1961 on the basis of mutation No.9380 has been sanctioned. A Division Bench of this Court in the case of Gram Panchayat Fatuwala v. State of Punjab, 2007 (4) RCR (Civil) 60 in a case where the issue was decided against the private respondents simply on the ground that in the Jamabandi the Gram Panchayat had been mentioned as owner of the disputed land, was held to be improper. It was held that the said finding was given without realizing the fact that mutation was changed in favour of the Gram Panchayat on the basis of a letter written by the State Government and it is yet to be decided whether the ownership can be changed on the basis of a letter written by the authorities without any authority of law. In the circumstances, it is to be held that the land measuring 39 kanals 3 marlas which is a subject matter of the present petition does not vest in the Gram Panchayat and the same is that of Jumla Mushtarka Malkan. It is made clear that the said observations are confined only to the land measuring 39 kanals 3 marlas and shall not, in any manner, affect the other lands which have been transferred on the basis of mutation No.9380 on 7.6.1964 in favour of the Gram Panchayat. Accordingly, the writ petition is allowed and the impugned orders dated 16.7.2004 (Annexure P1) and 11.5.2004 (Annexure P3) are set aside and quashed. However, nothing stated herein shall, in any manner, affect the other lands covered by mutation No.9380 of village Ralla sanctioned on 7.6.1964. (S.S. SARON) JUDGE September 4, 2009 amit