86 4 4b Civil Writ Petition No10049 of 2009 1 m INTHE HIGHCOURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No10049 of 2009 Date of Orderl Il March2011 Gurdev Singh Petitioner Versus The Financial Commissioner Haryana 1 and others 2espondents 0 U t5 Present MSarjitSinghSenior Advocate with I Mr JagdevSinghAdvocate for the petitioner Z Ms Shruti Jain AAG Haryana for no 1 to 3 0 Mr Vinod Bhardwaj Advocate for respondentnol I C3 RAJIVE BHALLA J Z The petitioner prays for issuance of a writ in the nature of 00 41 certiorari for quashingorders dated 281 12006 0052007 and W2 Z 0411 2008 passed by the Coilector Kaithal the Commissioner Qm Ambala Division AmbaIa and the Financial Commissioner Haryana Duringconsolidation in viilagePabala iand measuring 318 kanais and 18 marlas bearingKhewat Nos211 32 to 137 was carved out after imposinga pro rata cut on the holdingsof the proprietorsFheIand so created was described asJumla Malkan wa DigarHaqdaranArazi Hasab Rasad Raqba for short Juinla Mushtarka Malkanl The petitionerallegesthat out of this Iard 117 Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 87 10 Civil Writ Petition N10049 of 2009 e2e kanals and 15 marlas was used for common purposes of the village but the remaining201 kanals and 3 marlas of Iand remained lll possessioll of of the villagerhe State of Haryana enacted Act No of 1992 amending the PunjabVillageCommon Lands Regulationl Act 1961 lereinafter referred to as the 1961 Actl declaringthat Iand reserved duringconsolidation shall be 1 Shamilat Deh 0 On the basis of Act No of 1992 the Assistant Collector Ilnd O Grade Kaithal sanctioned mutation N1 7 altering the I C5 nomenclatureof this iand from Jumla Mushtarka Malkan to Gram 32 Panchayat Deh The petitioner alongwith one Atma Singhfiled Civil Z VVrit PetitionNo161 of 1999 the mutationand the vires C of Act No of 1992 The writ petitionwas decided in terms of the Full Bench judgmentin Jai Sinqh e State of Harvana 2003l2J 08 P1R658 wherein while upholding the Vires of Act No of 1992 it r 4 was also held that mutationssanctioned on the basis of Act N9 of vm Z 1991 are set asic The thereafter the fl Assistant Collector to rectifymutationno7 and restore the entry of Jumla Mushtarka Malkan The Assistant Collector Ist Grade vide order dated 2402005 sanctioned mutation noA25 in the name of Jumla Mushtarka Malkan and grantedIiberty to the Gram Panchayat to file a petitionunder Section 1341of the Act to establish its title The Gram Panchayatfiled an appeal The Collector allowed the appeai set aside the order passedbythe Assistant Collector Ist Grade and remitted the matter for a fresh decision An appealfiled by the Petitionerbefore the Commissioner Ambala Division Ambala was Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 88 C 6 Civil Writ Petition No10049 of 2009 n3n dismissedas was a revisionfiled before the Financial Commissioner Counsel for the petitioner submits that as in view of the Full Bench judgment in Jai Singhscase supral mutationssanctioned to Act No of 1992 were set aside the Collector had no to set aside the order passedbythe Assistant Collector It is fuIther arguedthat as the Iand in disputehas neither reserved 1 r nor used for common purposes and remained in possessionof 0 it does not vest in the Gram Panchayat It is further C arguedthat the remand is as the Assistant Collector I C IlndGrade has no to decide whether the Iandbelongsto the or to the Gram Panchayat Even otherwise if the Z Gram Panchayatasserts ownership it has to resort to m Q under Section 13eAof the Act As such the impugned orders should e I be set aside and revenue authoritiesshould be directed to restore 08 the mutation to its originalnomenclature of Jumla Mushtarka t MalkanIl 7 Z Counsel for the Gram Panchayathowever submitsthat as the Clm Vires of Section 2g61 of the Act have been upheld the Iandvests in the Gram PanchayatThe petitioners remedyas he allegesthat 1 the Iand was not reserved for common purposes is to file a petition under Section 13A of the 1961 Ac The possessionof the does not establish that this Iand was not reserved as IlJumla Mushtarka MaIkan for common purposes have heard counsel for the parties Before the presentdispute it would be to reproduceSections 18 and 23 Al of The East Punjab and Prevention of Act 1948 lereinaner referred to as Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 89 d 0 Civil Writ Petition N10049 of 2009 4e the ConsolidationActl Rule 16il of the East PunjabHoldings Consolidation and Prevention of Rules 1949 hereinafter referred to as the Consolidation Rulesl Section 2gx61 of the PunjabVillageCommon Lands Act 1961 as applicableto the State of Haryanaland relevant para of the judgment in Jai Sinqhs cassupr m r Section 18 and 23A of the Consolidation Act and Rule 16 0 iil of the Consolidation Rules read as follows C0 Section 18ands reserved for common purposesl I C5 anything contained in any Iaw for the time beingin force it shali be Iawfulfor the Z Consolidation Officer to direct Q al that any Iandspecifically assignedfor any common purposeshall cease to be so assignedand to a5 assignany other Iand in its place oo bl ofastreamortorrent 17 Z Oowingthroughor from the Shiwalik mountain tl rangewithin the Statelshall be assignedfor any common purpose cl that if any area under consolidation no Iand is reserved for any common purpose including extension of the villageabadi or if the Iand so reserved is to assignother Iand for such purpose and control of Iands for common purposes to vest in Panchayatsor State Government Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 90 a9 Civil Writ Petition Nol 0049of 2009 eSe Section 23A As soon as a scheme comes into force the management and control of all Iandsassigned or reserved for common purposes of the village undersection18 al tn the case of common purposes specifiedin subnclause vl of clause obl iC of section 2 in respect of which the 0 and controi are to be 0 exercised bythe State Government shall I C5 vest in the StateGovernment and I 1b1 In the case of any other common Z 5 purposeshall vest in the panchayatof tr that village and the StateGovernment or the Panchayatas C45 the case may be shall be entitled to rlo the income accruing mn Z therefrom for the benefit of the village and the rightsand interestsof the owners of such Iands shall stand modifiedand Provided that in case of Iandassigned or reserved for the extension of villageabadi or manure pitsfor the and non of the villagesuch Iand shall vest in the and non proprietors to whom it is givenunder the scheme of Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 91 1 Civil Writ Petition No10049 of 2009 e6a Ruie 161 16I XX XX XX 16il In an estate or estates where during Consolidation there Is no Shamlat deh Iand or such Iand is considered Iand shall be m Q reservedfor the villagePanchayat and for 0 other common purposes under section 0 18 cl of the Act out of the common pool 32 C5 of thevillageIatthe scale givenin the I 4 schedule to these rules Z rightsin respectof Iand so reserved except the area reserved for the I extension of abadi of the and 08 shall vest in the r body f esta10 151 SllltStes Z concernedand it shall be entered in the columnof ownershipof records rightsas Jumla Malkan wa DigarHaqdaranArazi Hasab Rasad RaqbalThe of such Iand shall be done by the Panchayatof the estate or estates concerned on behalf of the village bodyand the Panchayatshall have the right to utilize the income derived from the Iand so reserved for the Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 92 4 Civil Writ Petition No10049 of 2009 e common needs and benefit of the estate or estates concernedl Section Iands reserved for the common purposesof a villageunder section 18 of the East PunjabHoldingsConsolidation and Prevention of Act 1948 East PunjabAct 50 of 19481the management and control whereof vests 1 1 Ill the Gram Panchayatunder section 23A of the 0 aforesaid Act U I ExplanationeLands entered in the column of ownership C5 of record of rightsas tlJumla Malkan Wa Digar I HaqdaranArazi Hassab Rasad Jumla Malkan Z r or Mushtarka Malkan shali be shamilat deh within 0 the meaningof this sectior 1Ct I Section 18 of the Consolidation Act requiresa Z consolidationofficer to reserve Iand for common purposes Section 23A of the Consolidation Act providesthat as soon as a scheme of ma consolidation is sanctioned managementand control of Iand Z reserved for common purposes of the villageshall vest in the Gram 0 Panchayat or the State Rule 16iil providesthat where Shamilat Deh Iand IS inadequateIand shall be reserved for the villagePanchayatand for other common purposes byappiying a pro rata cut on the holdingsof the It further providesthat the Iand SO created shall be called Jumla Malkan wa DigarHaqdaranArazi Hasab Rasad Raqba l short Jumla Mushtarka Malkan I The ownershipof such Iand shall vest In the proprietorsbut its Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 93 4 V Civil Writ Petition N10049 of 2009 43 and control shail vest in the Gram Panchayat The Consolidation Act providesfor two varities of common purposes Iand namelyIand that vests in the Gram or the State Government and Iand that vests in the Gram Panchayatonlyfor the purpose of management and control known as Jumla Mushtarka MaIkan 1 Q Section 2g61 of the 1961 Act and the 0 appendedthereto introduced by Act No of 1992 providesthat C Iand reserved for common purposes of a villageunder Section 18 C5 and the managementand control whereof vests in the Gram 2I2 Panchayatunder Section 23A of the Consolidation Act shall be Z Shamilat Deh The appended to Section 261 of the S2 1961 Act provides that Iand entered in the column of ownershipas I UJumla Mushtarka Malkan Jumia Mushtarka or Mushtarka Malkan 08 shall be Shamilat Deh oo IC The vires of Section 261 came up for consideration 7 Z before a Full Bench of this Court in Jai Sinqh s case supral The 0 vires were upheldbyholdingthat submsection61of Section 2g1 of the Act and the appended theretoare a mere elucidation of the existingprovisions of the 1961 Act read with provisions contained in the East PunjabHoldingsConsolidation and Prevention of Act 1948 The Fuil Bench upheldthe declarationthat Iand reserved for the villagePanchayator for the other common purposes under Rule 16il shall be Shamilat Deh A relevantextract from the judgment reads as follows 62 In view of the discussion made above we hold that Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 94 Civil Writ Petition Noe10049of 2009 e9a il submsection61of Section 2gl of the PunjabViilage Common Lands RegulationlAct 1961 and the appendedthereto IS only an elucidation of the existingprovisions of the said Act read with provisions contained in the East Punjab Holdings Consolidation and Prevention of 1 Q Act 1948 0 iil the uneamendedprovisions of the Act of 1961 and t I Itl particularSection 211 1read with Sections 18 C5 and 2344 of the Act of 1948 and Rule 16il of the I Rules of 1949 cover ail such Iandswhich have been Z specificallyearmarked in a consolidation scheme Q preparedunder Section 14 read with Rules 5 and 7 and confirmed under Section 20 which has been 08 00 under the provisions of Section24 and t no other Iands W3 Z iiil the Iands which have been contributedby the proprietorson the basis of proaratacut on their holdings imposed during the consolidation proceedingsand which have not been earmarked for any common purpose in the consolidation scheme preparedunder Section 14 read with Rules 5 and 7 and entered in the column of ownership as Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the colurnn of possessionwith the shall not vest with the Gram Panchayat or the State Government as Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 95 14 Clvll Wrlt Petition No10049 of 2009 a1Oe the case maybe on the dint of of the Section2gl and the appended thereto or any other provisions of the Act of 1961 or the Act 0f1948 ivl all such Iands which have been as per the consolidation scheme reserved for common m C purposeswhether utilised or not shall vest with the 0 State Government or the Gram Panchayatas the 0 case may be even thoughin the column of I C5 ownershipthe entries may be Jumla Mushtarka Z r Malkan Wa DigarHaqdaranHasab Rasad Arazi Z Khewat etc Il 5r l The ratio in Jai Sincihs case IPraJ IS in 4 its conclusion that Iand reservedlearmarkedfor common purposes 08 under a Scheme of Consolidationwhether under Section 18 of the ao r ConsolidationAct or Rule 160i1of the Consolidation Rules vests in 7 Z the Gram Panchayator the State Government whether utilised or Il not for the common purpose So assigned The possessionof or the failure to use the Iandfor the common purpose SO assignedshall not take such Iand out of the definitlon of Shamilat Deh or Jumla Mushtarka Malkan However Iand that has not been earmarkedlreservedfor common purposes duringconsolidation and has been wronglyrecorded as Jumla Mushtarka Malkan shail not vest in the Gram Panchayat or the State Government on the dint of subsection161of Section 21g1of the 1961 Act The Fuli Bench Ill essence reiterates the obvious namelythat Iand reservedlearmarkedfor common purposes under a Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 96 4 Civil Writ Petitlon No10049 of 2009 41e scheme of Consolidation includingIand reservedlearmarked as tlJumlaMushtarka Malkan under Rule 16il of the Consolidation Rules shall vest in the Gram Panchayatwith the Iatter Jumla MushtarkaMalkanlvestingonlyfor the purpose of management and control of whether this Iand has been utllised or not for the common purpose SO assignedThe fact that this Iand may be Occupiedby or otherswould make no difference to the 1O vestingof this Iand in accordance with the provisionsof the 0 Consolidation ActlRules and the 1961 Act It would however be 0 to clarifythat Iandthat is not earmarked or reserved for Z Ca9 anycommon purpose duringconsolidation and is in possession of a J2 proprietorit shali not vest in the Gram Panchayatfor any purpose Z subjecthoweverto proofof the following in under Section 13A ofthe 1961 Act namely al the Iand was not reserved for common purposes C Z duringconsolidationand OO bl tn the possession of the proprietors am cl was createdduringconsolidation byapplyinga pro Z ratacut on the holdings of the proprietors ll Section 2g161introduced by Act No of 1992 has created a new of Shamilat Deh where and control of the Iand vests in the Gram Panchayatbut its ownership continuesto vest in the propnetors The Full Bench also held that if the mutationsmighthave come IntobeingOll Ihe dintofAct No of 1992challengedherein in favour of the State or Gram Panchayatthe said mutations Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 97 Civil Writ Petition Noe10049of 2009 n12 shall stand cancelled or set aside Ieavingopen for the Gram Panchayatto file an applicationfor eviction under Section 70r title suit under Sectlon 13 as the case may be if the Iands are such which have since been earmarked for common purposesunder the scheme and the are in unauthorised occupation and the to 1Z file a titlesuit in case the Iands are such whIchfom7 0 partof Bachat Iand havingnot been earmarkedfor 0 any common purpose in the scheme of C5 consolidaUon and yet the Gram PanchayatIS I 141 asserting its titIeor is in possession thereof Z A perusalof the above paragraphreveals that mutations 2 C sanctioned pursuant to Act No of 1992 shall stand cancelied and it c was Ieftto partiesto establish their title to the Iand namelywhether t z it common purposesduringconsolidation c C1O It would once againbe necessary to emphasise that where the Iand m2 IS reservedfor the Gram Panchayat or for a common purpose it shall Z vest in the Gram Panchayat of the fact whether it IS Qm used for the purpose so assigned The Iand in the presentcase was recorded as IlJumla Mushtarka Malkan e iand reservedlearmarked Ill accordance with Rule 16il of the Consolidation Rules for the common purposes of the Gram Panchayatand the villageaner applyinga proata cut on the hoidingsof proprietors The and control of this Iand vests in the Gram Panchayat The possessionof the petitionerwhether as a proprietoror Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 98 Civil Writ Petition No10049 of 2009 1 3e Cl otherwise makes no difference to the reservation of the Iand for common purposesand its vestingin the Gram PanchayatThe entry was changedto Gram Panchayat Deh after enactment of Act No of 1992 The petitionerapproached the Assistant CollectorIst Grade for restoration of the entryto Jumla Mushtarka Malkan after the judgmentin Jai Sinqhs case1supralThe Assistant CollectorIst 1 Grade allowed the but the Collector remanded the case 0 to the Assistant Collector Ist Grade for decidingthe matter afresh 0 after considering the case in its entiretybyholdingthat Iandhas been C reserved for common purposes The Commissioner in his order dated 0052007 has held that the Iand was reserved for various Z common purposes ie IikeGair Mumkin Paths Panchayat Ghar Gair r Mumkin Toiled Gora Deh Gair Mumkin water course Gair Mumkin crernation groundHadda Rori and tanningof skin The Financial 08 Commissioner has affirmed these orders and directed the Assistant m 4r Collector Ist Grade to examinethe matter afresh eV2 Z As discussed in the precedingparagraphs the Iand was Ll Jumla Mushtarka Malkan The revenue officers were requiredIll Vlew of Full Bench judgment in Jai Sinqhs case supraJ to restore the entryof Jumla Mushtarka Malkan but under an erroneous impressionthat if theyrestored the entryto tlJumla Mushtarka Malkan the Gram Panchayatwould be deprived of its rightsdeclined to restore the entry It would be necessary to reiterate that as the vires of sutsection to Section 2gl introduced byAct no of 1992 have been affirmed Iand described IlJumla Mushtarka Malkan continues to vest in the village as panchayatfor the purpose of managementand control The Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 99 Civil Writ Petition No10049 of 2009 44e of or the fact that Iandearmarkedfor common has not been put to common use is irrelevant and shall not affect the vestingof such Iand in the Gram Panchayatfor and control The nomenciatureof the Iandwhether as Jumla Mushtarka Malkan or Shamilat Deh or Gram Panchayat Deh is irrelevant as the Iand vests in the Gram Panchayatfor 1 1Z and control 0 1n view of what has been stated hereinabove the writ 0 PetitionIS ailowed the impugnedorders are set aside and the I t AssistantCollector Ist Grade is directedto restore the entryof Jumla r MushtarkaMalkan Ieavingit to the petitioner to establish his plea Z r thatthe Iandwas not reserved for common purposes tr Partiesare directed to appear before the Assistant Collector Ist e I Grade Kaithal on 2904 2 011 C45 00 r 1 11 March 742011 1RAJIVEBHALLAI 47 nt JUDGE Z 0 1 11A 4 0 4 Singh Gagan Preet 2014.03.27 15:54 TRUE SCANNED COPY OF ORIGINAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document