ININ ININ THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP 912 of 2006 Date of decision: 24.10.2009 Sarabjit Singh and ors …Petitioners Versus Director, Rural Development & Panchayat, Pb and ors …Respondents Present: Mr Jatinder Singla, Advocate for the petitioners. Mr HS Gill, DAG Punjab. Mr Amrik Singh and Mr SS Salar, Advocates for the Gram Panchayat. S.S. SARON, J. The petitioners by way of the present petition under Articles 226/227 of the Constitution of India seek quashing of the order dated 3.6.2005 (P13) passed by the Director, Rural Development and Panchayat, Punjab (exercising the powers of Commissioner under the Punjab Village Common Lands (Regulation) Act 1961) (1961 Act – for short). The facts of the case are that the Gram Panchayat of village Phool Khurd, Tehsil and District Ropar (respondent-5), filed a petition dated 9.3.1994 (P5) seeking declaration to the effect that it was the owner in possession of the land measuring 150 Kanals 16 Marlas as mentioned in the head note of the said petition situated in village Phool Khurd, Tehsil and District Rupnagar. The said petition was filed claiming possession of land measuring 150 Kanals 16 Marlas, against the Secretary, Revenue Deptt, Punjab, Chandigarh and the State of Punjab through Collector, District I Roopnagar. The father of the petitioners, it is alleged, was in possession of the land, who at that time was not impleaded as a party to the said petition. It is, however, submitted by the petitioners that they were proprietors of the village and were in possession of the said land. The official respondents i.e. Secretary, Revenue Deptt, Punjab and the State of Punjab through Collector, were proceeded against exparte. Accordingly, a declaration was made that the Gram Panchayat (respondent-5) was owner in possession of the land vide order dated 18.10.1994 (P6) passed by the Collector, Roopnagar. One Ajit Singh, who, it is stated, was also a proprietor of the village and was in possession of some area, which was subject matter of the petition dated 9.3.1994 (P5), assailed the order dated 18.10.1994 (P6) passed by the Collector, Roopnagar by filing an appeal before the Commissioner under the 1961 Act. On the petition filed by said Ajit Singh, the Commissioner, vide order dated 18.9.1996 (P7) held that Ajit Singh – appellant therein being Khewatdar of the village, had got a right in the case and it was necessary to hear him before the decision was given in the case. Therefore, the case was remanded back to the Collector, Roopnagar with a direction that after giving an opportunity to Ajit Singh aforesaid to produce evidence in his favour, the case be decided afresh and if the Collector felt the necessity, the Gram Panchayat be also heard. Consequently, the order dated 18.10.1994 (P6) passed by the Collector, Roopnagar was set aside. In consequence of the order of remand, the father of the petitioners namely Mohinder Singh filed an application (P8) under order 1 Rule 10 CPC for impleading him as a party. It was stated by him that the Gram Panchayat (respondent-5) in connivance with the respondents in the petition, had filed a petition under Section 11 of the 1961 Act seeking declaration to the effect CWP 912 of 2006 2 that it is the owner in possession of the land. In fact, the Gram Panchayat was fully aware about the fact that land measuring 100 Kanals 8 Marlas was owned and possessed by the said applicant Mohinder Singh – father of the petitioners since time immemorial i.e. even prior to 1950. Therefore, Mohinder Singh (applicant) prayed for being impleaded as a party. The said application for impleadment was allowed and Mohinder Singh filed written statement (P9) to the petition dated 9.3.1994 (P5) filed by the Gram Panchayat (respondent-5). The Gram Panchayat filed its replication (P10). The Deputy Commissioner, Roopnagar (exercising the powers of Collector under the 1961 Act) in terms of her order dated 5.3.3003 held that the suit land belonged to the Provincial Govt and that Provincial Govt was the owner of the land and entry of ‘Maqbooza Shamlat Deh’ was wrong. The Gram Panchayat (respondent-5) filed an appeal against the said order dated 5.3.2003 (P11) passed by the Collector, before the Commissioner under the 1961 Act, who vide impugned order dated 3.6.2005 (P13) allowed the appeal. It was held that the Gram Panchayat (respondent-5) was owner in possession of the disputed property. Besides, in the year 1984-85, respondents-4 to 7 (petitioners herein) who are brothers, illegally came in possession of the disputed land measuring 153 Kanals 16 Marlas. They had failed to prove as to in what capacity they came in possession of the land from the year 1984-85. It may also be noticed that out of the land measuring 153 Kanals 16 Marlas as detailed in the petition (P5), filed by the Gram Panchayat, Phool Khurd (respondent-5), certain land was acquired by the State Govt vide notification dated 12.7.1963. However, the State Govt had released the said land by denotifying the land sought to be acquired vide notification dated 18/19.10.2006 (R5/3). CWP 912 of 2006 3 Mr Jatinder Singla, learned counsel for the petitioners has contended that the land in question is owned and possessed by the village proprietory body. In fact, it is stated that as per the Khatauni Pamaish for the year 1951-52 (P1), ‘Shamlat Deh Hasab Rasad Arazi Khewat’ is recorded as owner in the column of ownership and under the column of cultivation, ‘Maqbooza Malkan’ is recorded. The Khatauni Pamaish (P1/1) mentions the old and new Khasra numbers. It is submitted that out of the land which in the Jamabandi for the year 1951-52 is in Khewat No.94, mutation No.503, was sanctioned on 3.12.1955 (P15) in favour of Panchayat Deh. However, the said mutation was subsequently changed (Tabdeel Malkiat) vide mutation No.37 from Gram Panchayat in favour of ‘Shamlat Deh Hasab Rasad Zar Khewat’. Besides, mutation No.117 was entered from ‘Shamlat Deh Hasab Rasad Zar Khewat’ in respect of certain land in favour of ‘Provincial Govt’. These entries find mentioned in the Jamabandi/Misal Haqiat for the year 1960-61 (P2). It is, therefore, submitted that in the column of remarks the mutation having been entered in favour of the ‘Gram Panchayat Hasab Rasad Zar Khewat’ would mean that the land in question was the ownership of the proprietary body. In any case, it is submitted that the land having been subsequently vested in the Provincial Govt, the Gram Panchayat would have no right to the same. Therefore, the Gram Panchayat had no locus standi to file the claim petition. It is also contended that in the proceedings before the Collector and the Commissioner under the 1961 Act, no issues were framed for determining the rights of the parties. Therefore, the matter in any case, is liable to be remanded. It is further submitted that in respect of the acquisition that was made, the Land Acquisition Collector vide award dated 21.1.1990 had CWP 912 of 2006 4 ordered that compensation of the acquired land be paid to the ‘Mushtarka Malkans’ amongst all the right holders according to their respective shares. It is submitted that the Gram Panchyat did not challenge the said award, which would mean that the ‘Mushtarka Malkans’ are the owners of the land. It is also contended that mutation No.503 in favour of the Panchayat Deh has been entered on the basis of letter dated 10.3.1954 of the Director, Welfare Revenue Deptt and mutation cannot be entered on the basis of such general letter. It is also mentioned that the land neither falls under the ‘Shamlat law’ nor under the provisions of Section 2(g) of the 1961 Act. In response, Mr HS Gill, DAG Punjab has submitted that as per Jamabandi for the year 1957-58, the land in question is shown in the column of ownership as ‘Gram Panchayat Deh’ and in the column of possession, as ‘Maqbooza Panachayat Deh’. Therefore, it is submitted that after denotification from acquisition vide notification dated 18.10.2006 (R5/3), the land is to vest in the Gram Panchayat Deh. It is also submitted that in the ‘Wajib Ul Arz’ of village Chhotapur, the land is being used for common purposes of grazing cattle. Therefore, the land is ‘Shamlat Deh’ for all intents and purposes. It is further submitted that if the contention of the learned counsel for the petitioners is to be accepted that the land belongs to ‘Jumla Mushtarka Malkan’, in that eventuality the provisions of Section 42- A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948 would be applicable as the land which is being used for common purposes whether specified in the consolidation scheme or not, is not to be partitioned amongst the proprietors of the village and is to be utilized and continued to be utilized for common purposes. CWP 912 of 2006 5 Mr Amrik Singh and Mr SS Salar, learned counsel for the Gram Panchayat have contended that the land which is recorded in the revenue record as ‘Shamlat Deh’ is ‘Shamlat Deh’ in view of Section 2(g) of the 1961 Act. It is submitted that the contention of the learned counsel for the petitioner that the land is neither covered under the ‘Shamlat law’ or under Section 2(g), is not tenable as once the land is recorded as ‘Shamlat Deh’, it is to be treated as ‘Shamlat Deh’ and is to vest in the Panchayat. It is further submitted that in case issues are not framed, the same is inconsequential as the only issue that was to be determined is whether the land is ‘Shamlat Deh’ and vests in the Panchayat. It is further contended that the award of the Land Acquisition Collector that has been referred to by the learned counsel for the petitioners has not been placed on record and neither has any pleading been raised in that regard. In any case, it is submitted that the recording by the Land Acquisition Collector as to who is entitled to the amount of compensation, does not determine the rights inter se the parties as the rights are to be determined in accordance with the provisions of the 1961 Act. The position regarding the sanction of mutation No.503 (P15) on the basis of letter dated 10.3.1954, it is submitted, merely re-affirms the position that the land which is ‘Shamlat Deh’ is to vest in the Gram Panchayat. In any case, the same having been changed in the name of ‘Shamlat Deh Hasab Rasad Zar Khewat, the sanctioning of mutation on the basis of letter dated 10.3.1954 is inconsequential. Besides, it is submitted that the Gram Panchayat had the locus standi to file the petition as the land in question vests in the Gram Panchayat. The father of the petitioners namely Mohinder Singh, it is submitted, came in possession of the land measuring 100 Kanals 18 Marlas for the first time in the year 1984-85 CWP 912 of 2006 6 which is evident from the Jamabandi for the year 1984-85 (P3) and earlier there is no entry showing the possession of the petitioners. I have given my thoughtful consideration to the contentions of the learned counsel for the respective parties and with their assistance, have gone through the records of the case. As has already been noticed in the ‘Khatauni Pamaish’ for the year 1951-52 (P1), in the column of ownership, the land is recorded as ‘Shamlat Deh Hasab Rasad Arazi Khewat’ and has been transferred in the name of ‘Panchayat Deh’. The Jamabandi/Misal Haqiat (P2) also records that mutation No.37 has been changed (Tabdeel Malkiat) from Gram Panchayat in respect of land measuring 268 Kanals 10 Marlas i.e. the entire area (Salam Raqba) in favour of ‘Shamlat Deh Hasab Rasad Zar Khewat’. Thereafter, in terms of mutation No.117, the land of ‘Shamlat Deh Hasab Rasad Zar Khewat’ stands entered and sanctioned in favour of the Provincial Govt. The same is in view of the acquisition proceedings of the land in terms of notification dated 12.7.1963 issued under Section 4 of the Land Acquisition Act 1894. The parties are not in dispute that the land has since been denotified from acquisition vide notification dated 18/19.12.2006 (R5/3). It is, however, before the notification releasing the land from acquisition that the Gram Panchayat of village Phool Khurd had filed a petition dated 9.3.1994 (P5) seeking a declaration to the effect that it is owner in possession of the land measuring 150 Kanals 16 Marlas. In the said petition, the Secretary, Revenue Department, Punjab, Chandigarh, and the State of Punjab through Collector, District Roopnagar, only were impleaded as parties. The petition was allowed by the Collector, Roopnagar vide order dated 18.10.1994 (P6). Thereafter, one Ajit Singh, another CWP 912 of 2006 7 proprietor of the village, filed an appeal before the Commissioner, who, vide order dated 18.9.1996 (P7) set aside the order of the Collector dated 18.10.1994 (P6) and remanded the case for fresh decision. In consequence of the remand, Mohinder Singh – father of the petitioners filed an application (P8) under order 1 Rule 10 CPC for impleading him as a party. The said application was allowed and he was impleaded as a party. Thereafter, written statement (P9) was filed by Mohinder Singh. The Gram Panchayat filed its replication (P10). The Collector, Roopnagar vide order dated 5.3.2003 (P11) held that the land in question belonged to the Provincial Govt, who was owner of the land and the entry of ‘Maqbooza Shamlat Deh’ was wrong. The Gram Panchayat, Phool Khurd, aggrieved against the said order, filed an appeal before the Commissioner, who has allowed the same vide order dated 3.6.2005 (P13). It was held that the Gram Panchayat was owner of the land at the time of land acquisition by the Govt. At present, the land in question, as already noticed, stands released from acquisition vide notification dated 18/19.10.2006 (R5/3). The contention of Mr Jatinder Singla, learned counsel for the petitioners, is that the land which is recorded as ‘Shamlat Deh Hasab Rasad Arazi Khewat’ does not vest and cannot be treated as ‘Shamlat Deh’. Besides, it neither falls under the Shamlat law nor under any provision of Section 2(g) of the 1961 Act. In order to appreciate the contention, it may be noticed that Shamlat law has been defined in Section 2(h) of the 1961 Act, which is as follows:- “2(h) ‘Shamilat Law’ means. – CWP 912 of 2006 8 (i) in relation to land situated in the territory which immediately before the 1st November 1956, was comprised in State of Punjab, the Punjab Village Common Lands (Regulation) Act 1953, or (ii) in relation to land situated in territory which immediately before the 1st November 1956, was comprised in State of Patiala and East Punjab States Union : the Pepsu Village Common Lands (Regulation) Act 1954.” The land in the present case relates to District Roopnagar, which was earlier part of District Ambala i.e. before 1.11.1956, which is the date fixed in terms of Section 2(h)(i). Therefore, the Punjab Village Common Lands (Regulation) Act 1953 applied. Section 2(g) of the 1961 Act defines ‘Shamlat Deh’, which reads as follows:- “Section 2(g) “Shamilat deh” includes :- (1) lands described in the revenue records as Shamlat deh excluding abadi deh; (2) shamlat tikkas; (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 purposes of village; (4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds situated within abadi deh or gora deh and CWP 912 of 2006 9 (5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records; but does not include land which --- (ii) has been allotted on quasi-permanent basis to a displaced person; (ii-a) was shamlat deh, but has been allotted on quasi permanent basis to a displaced person, or has been otherwise transferred to any person by sale or by any other manner whatsoever, after the commencement of this Act, but on or before the 9th day of July, 1985; (iii) has been partitioned and brought under cultivation by individual landholders before the 26th January, 1950; (iv) having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the shamlat deh and is so recording in the jamabandi or is supported by a valid deed and is not in excess of the sharer in the Shamlat Deh, (v) is described in the revenue records as shamlat, taraf, patties, pannas, and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act. (vii) -----. CWP 912 of 2006 10 (viii) was shamlat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamlat deh on or before the 26th January, 1950; or (ix) was being used as a place of worship or for purposes subservient thereof, immediately before the commencement of this Act. A perusal of the above shows that clause (1) of Section 2(g) envisages that Shamlat Deh includes land described in the revenue records as ‘Shamlat Deh’ excluding ‘Abadi Deh’. Section 2(g) in fact is in two parts. Clauses (1) to (5) relates to lands which are included in ‘Shamlat Deh’ and Clauses (ii) to (ix) relates to lands which do not include or are excluded from the definition of ‘Shamlat Deh’. Section 4(1)(a) of the 1961 Act provides for vesting of rights in Panchayat and non-proprietors. It is provided that 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 interest whatever in the land which is included in ‘Shamlat Deh’ of any village and which has not vested in a Panchayat under the ‘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. Therefore, it is in terms of Section 4(1)(a) of the 1961 Act that the land which is included in the definition of ‘Shamlat Deh’ of any village, is to vest in the Panchayat on the commencement of the 1961 Act. The 1961 Act came into CWP 912 of 2006 11 effect from the date of publication in the Punjab Govt Gazette (extra- ordinary) Legislative Supplement Part-I dated 4.5.1961. Therefore, such land which is ‘Shamlat deh’ is to vest in the Gram Panchayat. The contention of Mr Singla that the same is not included in any ‘Shamlat law’, thus, is not tenable as on the commencement of the Act i.e. on 4.5.1961, the land is recorded as ‘Shamlat Deh’. His further contention that the land since it is recorded as ‘Shamlat Deh Hasab Rasad Arazi Khewat, is not to vest in the Panchayat, may be considered. In support of the said contention, the learned counsel has cited various judgments, which may be considered. In Joginder Singh and ors v. Joint Director, Consolidation of Holdings, Punjab, and ors 1988 PLJ 535, the land was entered as ‘Shamlat Deh Hasab Rasad Zar Khewat’ and in the cultivation column, it was recorded as ‘Maqbooza Malkan’. In the said case, it was admitted by the respondent-Gram Panchayat therein that the area which is liable to be distributed, was originally entered as ‘Shamlat Deh Hasab Rasad Zar Khewat’ and in the column of cultivation, it was entered as ‘Maqbooza Malkan’. Therefore, the said case was based on the admission of the Gram Panchayat. Besides, no material had been placed before the Court to hold that the findings reached at by the Director, Consolidation of Holdings, on appraisal of the revenue record, was vitiated. Therefore, it was held that in regard to findings recorded by a Tribunal, a writ of certiorari was not liable to be issued. In Gram Panchayat/Gram Sabha, village Ugani v. State of Punjab 1997(2) PLJ 3, it was merely held that the entries in the revenue records to the effect that ‘Shamlat Deh Hasab Paimana Malkiat Muderqa Sajar Nasab Bandobasti’ do not and cannot legally mean that the land is CWP 912 of 2006 12 ‘Shamlat Deh’ and the same vests in the Gram Panchayat. The said finding has been reached at without adverting to any provision of law or the relevant Sections of the 1961 Act. The provisions of Section 2(g) of the 1961 Act were not adverted to and it is a judgment confined to its own facts. In Gram Panchayat, Village Bhedpura v. Additional Director, Consolidation and others 1997(1) PLJ 535 (DB), the ‘Bachat land’ was re-distributed amongst the proprietors. It was held that the plea that the Director Consolidation could not decide the question of title, is not tenable as Director Consolidation did not decide the question of title because the title in the ‘Bachat land’ inheres in heirs of the proprietors of the village. In the said case, the mutation of ‘Bachat land’ was entered in favour of Gram Panchayat without any basis. It was held that title did not vest in the Gram Panchayat and Gram Panchayat did not become owner of the same. It was observed that the Director Consolidation had only corrected a mistake. There was no determination as regards the nature of the land. In Nahar Singh and ors. v. Additional Director, Consolidation of Holdings, Punjab and ors 1992 PLJ 387, the right holders of village Longowal claimed that they along with others were owners of land and were co-sharers of land shown as ‘Mushtarka Malkan’ and the land shown as ‘Shamlat Deh ‘Hasab Rasad Zar Khewat’. The said case relates to land which was ‘Mushtarka Malkan’ land and also ‘Shamlat Deh’ land, which was ‘Hasab Rasad Zar Khewat’. No finding was given in the said case that the land which is recorded as ‘Shamlat Deh Hasab Rasad Zar Khewat’ is not to vest in the Panchayat. The land to which the right CWP 912 of 2006 13 holders were held entitled to was the Jumla Mushtarka land and Maqbooja Malkan land and not Shamlat land. In Gram Panchayat Shitabgarh v. Director Consolidation of holdings and ors (1992-1) PLR 616, the Director, Consolidation had directed to change mutation after 30 years and he had undertaken to undo a mistake. It was held that the matter was entirely within his jurisdiction. As per averments in the said case the suit land was recorded as ‘Shamlat Deh Hasab Rasad Hasab Hissa Hitsari’. The mutation had been sanctioned in favour of the Gram Panchayat on the basis of a government letter. A challenge was made to the sanction of mutation before the Director Consolidation of Holdings on the ground that there was infact no order of the Punjab Govt directing the sanction of mutation in favour of the Punjab Govt, which was allowed by the Director Consolidation of Holdings. It was observed by this Court that the Director of Consolidation had not changed the mutation, but had only sought to undo a mistake that had crept in at the time of consolidation proceedings. No adjudication was carried out as to whether the said land vests in the ‘Gram Panchayat Deh’. Even otherwise, the same could not have been carried out by the Director Consolidation as it is to be done by the Collector under the 1961 Act, as held by the