LPA No.271 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.271 of 2009(O&M) Date of decision: 28.4.2011 Teja Singh & others ......Appellant(s) Versus Joint Director, Panchayats & others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Premjit Kalia, Advocate for the appellants. Mr. Manohar Lall, Additional Advocate General, Punjab, for respondents No.1 and 2. Mr. Shakun Chaudhary, Advocate for respondent No.3. Rakesh Kumar Garg, J. CM No.801 of 2009 CM is allowed subject to all just exceptions. LRs of petitioners No.1, 3 and 4, as mentioned in this application, are ordered to be brought on record for the purpose of pursuing this appeal only. LPA No.271 of 2009(O&M) By way of this appeal, the appellants have challenged the judgment dated 7.8.2008 passed by the learned Single Judge in CWP No.5939 of 1983 whereby their writ petition for quashing the order dated 17.11.1981 passed by the District Development Officer, Amritsar and the order dated 6.10.1983 passed by the Joint Director, Panchayats, Punjab (exercising the powers of Commissioner), was dismissed. As per the averments made in the writ petition, Civil Suit No.77 of 1967 passed by the Sub Judge, 1st Class, Ajnala, for possession of the land measuring 689 kanals 4 marlas as detailed in the head note LPA No.271 of 2009(O&M) 2 except the land measuring 196 kanals 11 marlas mentioned in the first part of para No.4 of the plaint holding that the petitioner/appellants were the owners of the suit land and mutation in favour of respondent-Gram Panchayat was sanctioned illegally, was decreed in favour of the appellant/petitioners vide judgment dated 29.4.1968(attached as Annexure P-1 with the writ petition). The petitioners took possession of the land in dispute on 20.1.1980 in execution of the said decree and entry with respect to the delivery of possession was duly made in Nakal Roznamcha Vakiati for the year 1979-80. It is the further case of the appellants (writ petitioners) that respondent No.3 filed an application on 7.8.1980 before the District Development Officer, Amritsar under section 4 read with section 2(g)(4) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the 'Act'). The said application was illegally allowed by respondent No.2 vide order dated 17.11.1981 holding that Gram Panchayat continues to be the owner of the land in dispute. Appeal filed by the appellants (writ petitioners) against the aforesaid order was dismissed vide order dated 6.10.1983 (attached as Annexure P-4 with the writ petition) by the Joint Director, Panchayats, Punjab (exercising the powers of Commissioner). The aforesaid two orders were challenged by the appellants by filing CWP No.5939 of 1983. The respondent-Gram Panchayat in its written statement pleaded that the land in dispute was allotted to the Panchayat for common purposes of the village by the Consolidation Authorities and mutation of the same was also sanctioned vide mutation No.495 dated 18.5.1957 in its favour and thus, ownership of land measuring 988 kanals 8 marlas vested in it. This included 19 kanals 14 marlas of land belonging to 'Shamlat Tarf Hinduan', 349 kanals 19 marlas 'Shamlat Patti Uggarsain', 1 kanal 'Shamlat Patti Khan' and from then onwards, the Gram Panchayat became LPA No.271 of 2009(O&M) 3 owner of the land and is recorded as such in the revenue papers. The petitioners in collusion with the Sarpanch of Panchayat obtained a decree which was not executed for a period of nearly 12 years. The possession throughout was with the Panchayat which was obtained by the petitioners on 14.9.1980 after filing of the above said application on the basis of the judgment Annexure P-1 which was obtained without bringing the Scheme of Consolidation to the notice of the Civil Court. It was further averred that most of the land was being used for the common purposes of the village and was Gair Mumkin Nullah, Gair Mumkin Khud, Rasta Havelian Khewat Kotha etc. The possession of the agricultural land was also with the Panchayat. Further defence was taken that under Section 4 of the Act, the Civil Court judgment was to be ignored as the land in dispute was Shamlat Deh and the Civil Court had no jurisdiction to pass the decree Annexure P- 1 which was kept concealed. Lastly dismissal of the writ petition was prayed for. While dismissing the writ petition, the learned Single Judge held that the land in dispute was reserved for common purposes on 25.1.1961 i.e the date on which Consolidation Scheme came into existence and there was nothing in the Civil Court judgment to support that the disputed land of “Taraf Hinduan” did vest in the appellants. Rather by operation of provisions of law, the land in dispute came to vest in the Panchayat on the commencement of the Punjab Village Common Lands (Regulation) Act and the petitioners were liable to be ejected from the land in dispute. Challenging the aforesaid judgment, learned counsel for the appellants has vehemently argued that the learned Single Judge had committed illegality while ignoring the Civil Court judgment dated 29.4.1968 vide which the question of title between the parties had been LPA No.271 of 2009(O&M) 4 decided and a decree for possession in favour of the predecessor-in- interest of the appellants was passed holding that the suit land did not vest in the Gram Panchayat, meaning thereby the appellants were the owners of the suit land and thus, the findings of the learned Single Judge to the effect that in the Civil Suit title of the appellants was not decided was contrary to the law and facts and hence, unsustainable. Learned counsel for the appellants has vehemently argued that the term 'Shamlat Hasab Rasad Khewat' has been interpreted in a catena of judgments to the effect that such land cannot be vested in the Gram Panchayat and only the proprietors having the share in the Shamlat Deh were its owners. The subject matter in dispute is land measuring 19 kanals 14 marlas belonging to Shamlat Tarf Hinduan village Kuralian Hadbast No.283 Tehsil Ajnala Distt. Amritsar. According to the appellants, as per the entries in the revenue record, the said land cannot be a Shamlat belonging to Panchayat and its owners was Taraf Hinduan. Appellants had filed Civil Suit No.77 of 1967 for possession of the said land which was decreed holding that Gram Panchayat was not the owner of suit land. However, vide orders, impugned in Civil Writ Petition, the said Civil Court decree has been set at naught by the revenue Authorities illegally and the Civil Writ petition has also been dismissed ignoring the aforesaid facts and well settled principals of law in this regard. It is useful to refer to Section 2(g) of the Act which reads as under:- “2(g) 'Shamlat deh' includes:- (1) xx xx (2) xx xx (3) lands described in the revenue records as shamlat, tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common LPA No.271 of 2009(O&M) 5 purposes of the village.” From the language of Section 2(g)(3), it can be culled out that the land described in the revenue records as “Tarafs” used for common purposes also falls within the definition of 'Shamlat Deh'. It is also useful to refer to the Consolidation Scheme relating to village Kuralian, Hadbast No.283, Tehsil Ajnala, District Amritsar, which reads as under:- “4(5) The shortage in the Joint area shall be made good from the KHEWATS of Panchayat deh SHAMLAT PATTI UGGARSAIN, SHAMLAT PATTI KHAN, SHAMLAT TARF HINDUAN in accordance with the condition No.6 mentioned below. If the requirement is not fulfilled from the aforesaid JUMLA KHEWATS area, then the area shall be made good out of the area of Jumla Malkan as per the pro-rate of the ownership of the landowners. 6. TAKSIM RAKBA SHAMLAT DEH (Partition of the Shamlat-Deh area) In this village Shamlat Deh area was 986 kanals 17 marlas as per 60 inch measurement. The land has been mutated in favour of Panchayat Deh vide mutation No.495 which shall be utilized for the common purposes, and shall be entered in Khewat as Panchayat Deh. Besides this, the area of Shamlat Tarf-Hinduan (19K 14M), Shamlat-Patti Uggarsain (349K 19M), Shamlat- Patti Khan (1 Kanal) as per 60 inch measurement in existing. Out of this, whole of Patti-Khan area will be utilized for common purposes, and out of the area of Taraf-Hinduan and Patti-Uggarsain, proportionately the area shall be utilized for the common purposes. In this manner if any land still remains unutilized out of the Shamlat area then after creating a separate KURRAH of the same, the same shall be the ownership of Shamlat (Panchayat) and the area to be utilized for common purpose shall be entered under the Khewat as LPA No.271 of 2009(O&M) 6 Shamlat. Meaning thereby, that Jumla Khewat the area of Shamlat and Panchayat Deh as standard area shall be made good.” Sd/- Settlement Officer Consolidation of Holding 25/1/61 Amritsar-II” As per the Consolidation Scheme, the area of Shamlat Tarafs Hinduan Shamlat Patti Uggarsain and Shamlat Patti Khan was reserved to be utilized for the common purposes and if some area of Taraf Hinduan remained unutilized, the same shall be the ownership of Panchayat Deh. The Consolidation Scheme came into existence on 25.1.1961 whereas the Civil Suit, the very basis of the claim of the appellants, was instituted on 3.4.1967 which culminated in the decree on 29.4.1968. Thus, it emanates that the Consolidation Scheme came into being about more than six years prior to the filing of this suit. It is appellants/petitioners' own case that the suit land was described as “Shamlat Taraf Hinduan Hasab Hissas Shirjran Nasab”. If it was so, the land being Shamlat Taraf, in no manner could become the ownership of the appellant/petitioners, rather as per the entries in the said Jamabandi, 'Taraf Hinduan' was the owner of this land. There is not even a remote reference in Annexure P-1 that the appellant/petitioners had claimed themselves to be the share-holders in 'Taraf Hinduan'. It emanates from Annexure P-1 that the suit filed by the appellants was for possession of the land measuring 689 kanals 4 marlas which was decreed to the exclusion of land measuring 196 kanals 11 marlas. In fact vide Annexure P-1, the appellants had not sought declaration for their ownership qua the land in dispute. It may also be relevant to mention at this stage that the jamabandies for the year 1961-62 and 1957-58 placed on record as Ex.P1 LPA No.271 of 2009(O&M) 7 and P2 respectively in the Civil Court show that the property was in possession of the owners and was not being used for the common purposes of the village. But there is not an iota of evidence to connect the petitioners as owners of 'Shamlat Taraf Hinduan'. In fact, the petitioners have failed to connect themselves with the proprietors of the 'Shamlat Taraf Hinduan'. It is well settled principle of law that the case of plaintiff has to stand on his own legs. Simply because Gram Panchayat has failed to defend the suit, it does not mean that merely on the basis of the aforesaid evidence, the appellants were entitled to get possession of the land. The aforesaid evidence does not reveal the basis as to the right of the petitioners to have possession of the land. Admittedly, the Gram Panchayat had not contested the suit although the Sarpanch was served in person and did not come forward to contest the suit. Even the jamabandies put on record clearly show that the land is used and reserved for common purposes. From the facts established on record, the Civil Court decree passed, on 29.4.1968 was a collusive one as the Gram Panchayat did not contest. The suit was only for possession of land and question of title was not decided, therefore, the title of the the Gram Panchayat did not change as a result of the Civil Court decree. It may also be noticed that the disputed land had been mutated in favour of Panchayat vide mutation No.495 dated 18.5.1957 for being utilized for the common purposes. When the mutation of this land had already been sanctioned in favour of the Gram Panchayat on 18.5.1957 and it was reserved for being utilized for common purposes and the jamabandi for the year 1966-67 shows that the land was used and reserved for common purposes, the Civil Court did not have the power to entertain the suit as the jurisdiction under Section 13 of the Act was barred. The factum of Consolidation Scheme as well as sanctioning of the above LPA No.271 of 2009(O&M) 8 mutation in favour of the Gram Panchayat could have been brought before the Civil Court by the Panchayat, which did not come forward to contest the suit. The then Sarpanch of the respondent-Gram Panchayat did not watch interest of the Gram Panchayat, rather allowed its property to be jeopardized though he was expected to defend interest of the Gram Panchayat. In these circumstances, in view of the observations in the case of Gram Panchayat of village Naulakha v. Ujagar Singh and others (2000) 7 Supreme Court Cases 543, the revenue Authorities were entitled to go into the collusive nature of the civil suit in the proceedings before them under the Punjab Village Common Lands (Regulation) Act, 1961. Thus, it was open to the statutory authorities under the 1961 Act to go into the collusive nature of the suit in the proceedings under Section 7 of the Punjab Village Common Land (Regulation) Act, 1961” (Emphasis supplied), and the respondents were not required to file an independent suit in the Civil Court for setting aside the said decree. Undisputedly, the Consolidation Scheme came into existence on 25.1.1961 whereas the civil suit was filed on 3.4.1967. As per the Consolidation Scheme, the land in dispute has already been reserved for common purposes. There is nothing in the Civil Court judgment, on the basis of which, it can be said that the disputed land of Taraf Hinduan did vest in the petitioners as owners. Section 4(1) of the Act reads as under: “4. Vesting of rights in Panchayat and non- proprietors. (1) 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 interests whatever in the land. (a) which is included in the shamlat deh of any village and which has not vested in a Panchayat under the LPA No.271 of 2009(O&M) 9 shamlat law shall, at the commencement of this Act vest in a Panchayat constituted for such village, and where no such Panchayat has been constituted for such village vest in the Panchayat on such date as a Panchayat having jurisdiction over that village is constituted. (b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non- proprietor shall on the commencement of shamlat law be deemed to have been vested in such non-proprietor.” By operation of the above provisions of law, the land in dispute came to vest in the Panchayat on the commencement of the Act as well. Section 7 of the Act runs as under:- “7. Power to put Panchayat in possession of certain lands:- (1) An Assistant Collector of the first grade having jurisdiction in the village may, either suo moto or on an application made to him by a Panchayat or an inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorized by the Block Development and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed, eject any person who is in wrongful or unauthorized possession of the land or other immovable property in the shamilat deh of the village which vests or is deemed to have been vested in the panchayat under this Act and put the panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue Court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887.' Provided that if in any such proceedings the question of title is raised and proved prima facie on the basis of documents that the question of title is really involved, the Assistant Collector of the first grade shall LPA No.271 of 2009(O&M) 10 record a finding to that effect and first decide the question of title in the manner laid down hereinafter.” Thus, by operation of law, the land in dispute came to vest in the Panchayat on the commencement of the Act and by dint of Section 7 of the said Act, the petitioners could be ejected by the respondents from the land in dispute. For the reasons recorded above, we find no merit in this appeal. Dismissed. (JASBIR SINGH) (RAKESH KUMAR GARG) JUDGE JUDGE April 28, 2011 ps