IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 573 of 2009 Date of Decision: April 20, 2010 Onkar Singh and others …Petitioners Versus State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. I.K. Mehta, Senior Advocate, with Mr. M.S. Kohli, Advocate, for the petitioners. Ms. Palika Monga, DAG, Haryana, for the respondents. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This petition filed under Article 226 of the Constitution seeks a direction to the respondents for payment of amount of compensation to the petitioners in terms of Land Acquisition Award No. 4 for the year 2008-09, dated 15.11.2008, announced by the Sub Divisional Officer (Civil)-cum-Land Acquisition Collector, Ambala (P-4). Brief facts of the case are that the petitioners are right holders of village Dhakola, Sub-Tehsil Saha, Tehsil Barara, District Ambala. It is claimed that there are more than 500 co-owners of land, who have been described as Mushtarka Malkan (joint owners) in the revenue record of village Dhakola. On 23.12.2005, a notification under Section 4 of the Land Acquisition Act, 1894 (for CWP No. 573 of 2009 brevity, ‘the 1894 Act’) was issued proposing to acquire total land measuring 278 Acres 1 Kanal and 1 Marla [out of which 154 Acres 5 Kanals and 6 Marlas of land was falling within the revenue estate of village Dhakola] for a public purpose, namely, for setting up an Industrial Growth Centre, Saha. The Centre was to be developed by the Haryana State Industrial and Infrastructure Development Corporation (HSIIDC). On 29.12.2006, a declaration under Section 6 of the 1894 Act was made by the Land Acquisition Collector acquiring total land measuring 274 Acres 4 Kanals and 16 Marlas including 154 Acres 1 Kanal 15 Marlas of land pertaining to village Dhakola (P-2). After issuance of notices under Section 9 of the 1894 Act and affording opportunity of hearing to the petitioners and other land owners, the Sub Divisional Officer (Civil)-cum-Land Acquisition Collector, Ambala-respondent No. 2 announed Award No. 4, dated 15.11.2008 (P-4). It has been alleged by the petitioners that they were present before the Collector on 15.11.2008 and requested him for disbursement of compensation but no payment was made to them. However, payment has been made to other owners, who according to the Collector were entitled to receive compensation. On 22.11.2008, again payment was refused by the Collector without assigning any reason. In order to establish their ownership and the fact that they were in possession of the land in question as Mushtarka Malkan at the time of acquisition with other right holders, the petitioners have placed on record extract of the jamabandi of village Dhakola for the year 1986-87 (P-5). Thus, the only grievance of the petitioners is that they have been illegally deprived of their right of compensation in respect of the acquired land. A short reply in the shape of affidavit dated 27.1.2010, was filed by the Deputy Secretary to Government Haryana, Industries and Commerce 2 CWP No. 573 of 2009 Department stating that the amount of compensation as determined by the Collector was duly deposited by the acquiring department. However, the Collector has not disbursed the amount of compensation to the petitioners because in the jamabandi for the year 2002-03 of village Dhakola, in Column No. 4 pertaining to ownership, ‘Gram Panchayat’ has been recorded as owner (R-1). It has further been submitted that even if the claim made by the petitioners is considered to be true, they have the rights as Mushtarka Malkan. Therefore, until and unless their respective shares are determined, the compensation cannot be disbursed amongst them. The Land Acquisition Collector-respondent No. 2 has filed his short written statement and has also placed reliance on the jamabandi for the year 2002-03, in support of the submission that the disputed land is owned by the Gram Panchayat, Dhakola. It has, thus, been asserted that the compensation could not be disbursed to the petitioners or other land owners. However, it is admitted that the award was announced and the amount of compensation was deposited with the Land Acquisition Collector. An additional affidavit dated 30.3.2010, has been filed by one of the petitioners rebutting the aforementioned stand concerning ownership. Mr. I.K. Mehta, learned senior counsel appearing for the petitioners has vehemently argued that for no reason the amount of compensation is being disbursed to them or the other villagers who are the co-owners of the land in dispute, which is described as mustarka malkan in village Dhakola. In order to buttress his stand learned counsel has referred to notice dated 29.12.2006, issued under Section 9 of the 1894 Act (P-3) to the petitioners as well as other interested persons. As co-owners they were asked to appear before the Collector, which indicate that according to the revenue record the land was not owned by the 3 CWP No. 573 of 2009 Gram Panchayat. According to the learned counsel, the matter did not end there and Award No. 4 was announced by the Collector on 15.11.2008 in the presence of the petitioners and other co-owners. However, the Land Acquisition Collector-respondent No. 2 refused to disburse the amount of compensation on flimsy grounds. Referring to the affidavit dated 30.3.2010, filed by one of the land owner, learned counsel has submitted that Mutation No. 1411 of 2005 in respect of the land in question was sanctioned in favour of the petitioner and other co-owners and entry was changed from Panchayat Deh to Mustarka Malkan on the basis of Full Bench judgment of this Court rendered in the case of Jai Singh v. State of Haryana, 2003 (2) RCR 578. He has drawn our attention to the excerpts from the Register of Mutation to reinforce his stand that in the column of ownership the land is now mutated in the name of the petitioners and other land owners of the proprietory body. Ms. Palika Monga, learned State counsel has argued that the jamabandi of the year 2002-03 shows that the Gram Panchayat is the owner and the ownership has never vested in the petitioners or other co-villagers (R-1). Therefore, the petitioners or the other villagers cannot claim to be the owner of the land. Consequently, no compensation could be disbursed to them. After hearing learned counsel for the parties and perusing the record with their able assistance, we are of the considered view that the land in question belongs to the proprietory body of the village Dhakola, which is not being used for village common purposes. In the year 1992 an amendment was made in Section 2(g), Section 7 and 13-B of the Punjab Village Common Lands (Regulation) Act, 1961 (for brevity, ‘the Act’). The matter was considered by a Full Bench of this Court in Jai Singh’s case (supra) and in para 62 the following 4 CWP No. 573 of 2009 conclusions were drawn:- “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 the Gram Panchayat or the State Government, as the case may, on the 5 CWP No. 573 of 2009 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 of 1948; iv) all such lands, which have been, as per the consolidation shceme, reserved for common purposes, whether utilised or not, shall 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 Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat etc.” A bare perusal of sub-para (iii) of para 62 of the aforesaid judgment rendered in Jai Singh’s case (supra) shows that the land which have been contributed by the proprietors on the basis of pro-rata cut on their holdings during 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. If such a land is entered in the column of ownership as Jumla Mustarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession it is shown in the name of the proprietors then the same is not to vest in the Gram Panchayat or the State Government on the basis of sub- Section (6) of Section 2(g) and the explanation appended thereto or any other provisions of the Act or the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The crux of the matter appears to be that the land of the proprietors which has remained un-utilised for village common purposes would continue to be the land owned by the proprietory body of the village and it would not vests in the Gram Panchayat. The aforesaid view is further elucidated in para 64 and 66 of the judgment in Jai Singh’s case (supra), which reads thus:- 6 CWP No. 573 of 2009 “64. Even though, therefore, land in the aforesaid case may have been shown in the column of ownership as if vesting with the proprietors, inasmuch as, it was being used for common purposes, pursuant to a scheme prepared under the Act of 1948, it was held to be belonging to Gram Panchayat. For the kind of land, as mentioned above, it is too apparent that there was no necessity at all to sanction mutation in favour of the Gram Panchayat and change the entries recorded in the column of ownership from proprietors to that of Gram Panchayat. Further, as mentioned above, irrespective of provisions contained in Rule 6(ii) that such lands shall be shown to be vesting in the proprietors, the fact remains that the proprietors are divested of their ownership on the basis of Section 23-A as also Section 3 of the Act of 1961 as also in view of the Full Bench decision of this Court in Kishan Singh’s case (supra). 65. xxx xxx xxx xxx xxx xxx xxx xxx xxx 66. Insofar as all other cases are concerned, same shall stand disposed of in light of law laid down by us. Resultantly, if the mutations might have come into being on the dint of Act No. 9 of 1992 challenged herein in favour of the State or Gram Panchayat, the said mutations shall stand cancelled or set aside, leaving open for the Gram Panchayat to file an application for eviction under Section 7 or title suit under Section 13-A, as the case may be, if the lands are such which have since been earmarked for common purposes under the scheme and the proprietors are in unauthorised occupation and, 7 CWP No. 573 of 2009 the proprietors to file a title suit in case the lands are such which form part of Bachat land, having not been earmarked for any common purpose in the scheme of consolidation and yet the Gram Panchayat is asserting its title or is in possession thereof.” (emphasis added) It is, thus, clear from the aforesaid two paras that the land belonging to the land owners and reserved on the basis of pro-rata cut for the common purposes of the village community, if not being used for that purpose then it would continue to be the ownership of the owners and would not vest in the Gram Panchayat. When the aforesaid principles are applied to the facts of the present case, it becomes evident from the jamabandi for the year 2002-03 (R-1) that the land has not been reserved for village common purposes although the Gram Panchayat has been shown to be the owner. It is further evident from the jamabandi of village Dhakola (P-5) for the year 1986-87 that Mustarka Malkan Munkisam were shown as owner in column No. 4. The aforesaid entry appears to have been changed after the amendment effected in the year 1992 in the name of Panchayat Deh. The petitioner along with other co-owners belonging to the proprietory bodies have got the entries corrected on 10.12.2005 (P-6) in pursuance to the judgment of the Full Bench of this Court rendered in Jai Singh’s case (supra). We have taken on record the vernacular copy of the mutation as Mark ‘A’. Once the aforesaid facts are clear then according to Section 31(1) of the 1894 Act, the Collector is under an obligation to disburse payment of compensation to the persons interested and entitled thereto according to the award. In the absence of disbursement for any reason, the compensation is 8 CWP No. 573 of 2009 required to be deposited with the reference court. On both counts the Collector has violated the mandate of Section 31 of the 1894 Act. Firstly, he has not disbursed the compensation to the petitioners and other co-owners of the land in question, which is mandatory. Secondly, the Collector has not deposited the amount, which has remained un-disbursed with the reference court, which is the Court of learned District Judge as the reference under Section 18 of the 1894 Act are to be determined by him. It has already come on record that the award was announced on 15.11.2008 and the compensation should have been disbursed to the petitioners and other co-owners on that date. As a sequel to the above discussion, the writ petition succeeds. The Land Acquisition Collector-respondent No. 2 is directed to disburse the amount of compensation to the petitioners and other co-owners whose land has been acquired. They shall also be entitled to interest at the rate of 9% per annum from the date of taking possession for the first year and at the rate of 15% per annum for the rest of the period till the date of payment. The respondents are also saddled with the costs of Rs. 10,000/- as the mandatory provisions of Section 31 (1) and (2) of the 1894 Act have been violated. The needful shall be done within a period of two months from the date of receipt of a certified copy of this order. The writ petition stands disposed of in the above terms. (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) April 20, 2010 JUDGE Pkapoor 9