CWP No.2938 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.2938 of 2007 Date of Decision: 28.5.2010 CWP No.2938 of 2007 Gram Panchayat of Village Amrala .....Petitioner Vs. Director, Rural Development and Panchayats Punjab, Chandigarh and others .....Respondents CWP No.16763 of 2006 Guljar Singh .....Petitioner Vs. Director Rural Development and Panchayats Punjab, Chandigarh and others ....Respondents CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. S.S. Rangi, Advocate for the petitioner. Mr. S.S. Sahu, AAG, Punjab, for respondent nos.1 and 2. Mr. S.S. Salar, Advocate for respondent no.3. .... RAJIVE BHALLA, J This order shall dispose of CWP Nos.2938 of 2007 filed by the Gram Panchayat, Village Amrala, Tehsil and Distt. Fatehgarh Sahib and CWP No.16763 of 2006, filed by Guljar Singh respectively. For the sake of convenience, facts have been taken from CWP No.2938 of 2007. The Gram Panchayat prays for the issuance of a writ in the CWP No.2938 of 2007 2 nature of Certiorari for setting aside the orders dated 21.1.1999 and 15.7.2005, passed by the District Development and Panchayat Officer (exercising the powers of the Collector) and the Director, Rural Development and Panchayat (exercising the powers of the Commissioner), respectively, whereas Guljar Singh prays for issuance of a writ in the nature of Certiorari for partly setting aside the order dated 15.7.2005, passed by the Director, Rural Development and Panchayats, Punjab. Gurbachan Singh and Avtar Singh filed an application under Section 11 of the Punjab Village Common Lands (Regulation) Act,1961, (hereinafter referred to as `the 1961 Act') before the Collector-cum- D.D.P.O. Fatehgarh Sahib, alleging that as the land in dispute vests in the Gram Panchayat of village Amrala, Tehsil Khumano, Distt.Fatehgarh Sahib, Guljar Singh, should be declared to be an unauthorised occupant of panchayat property. Guljar Singh filed a reply denying the averments in the petition and asserting that as his predecessors were in possession, prior to 26.1.1950, the land does not vest in the Gram Panchayat. The Collector dismissed the application by holding that as jamabandis Ex.R-1 to Ex.R-7 establish that this land was never used for common purposes and as Guljar Singh's predecessors were in possession of the land in dispute in the year 1940-41, the land does not vest in the Gram Panchayat. Aggrieved by this order, the Gram Panchayat filed an appeal. The Commissioner held that though the land is owned by the Gram Panchayat, Section 4(3)(ii) of the Act, would protect the old and continuous possession of Guljar Singh. CWP No.2938 of 2007 3 Counsel for Guljar Singh, submits that Section 2(g)(viii) of the 1961 Act provides that “Shamilat Deh”, which is in the individual cultivating possession of co-sharers on or before 26.1.1950 shall be excluded from “Shamilat Deh”. The jamabandi for the year 1940-41 clearly records that Gurdit Singh, a predecessor in interest of Guljar Singh, is in cultivating possession of the land in dispute. The land in dispute is, therefore, excluded from “Shamilat Deh. It is further argued that even if the land is not excluded by Section 2(g)(viii), it would be excluded from “Shamilat Deh” by operation of Section 4 (3)(ii) of the 1961 Act, as nothing contained in clause (a) of sub-section (1) and in sub-section (2) of Section 4 shall affect or shall be deemed ever to have affected the rights of persons in cultivating possession of Shamilat Deh for more than 12 years, immediately preceding the commencement of the 1961 Act. It is argued that the Collector rightly dismissed the application but the Commissioner has wrongly held that though the Gram Panchayat is the owner, Guljar Singh's possession has to be protected under Section 4(3)(ii) of the Act. It is further argued that the assertion that Guljar Singh is a lessee, is factually incorrect, as the Sub-Judge, Ist Class, Samrala, vide his judgement and decree dated 11.12.1980, restrained the Gram Panchayat from interfering in Guljar Singh's possession. The bid documents, prepared by the Gram Panchayat recording the participation of Guljar Singh in an auction are, therefore, a forgery. Counsel for the Gram Panchayat submits that the jamabandi for the year 1940-41 does not record the land as Shamilat Deh but specifically records that the Gram Panchayat is owner of the land in dispute. Guljar Singh is, therefore, not entitled to the protection of Section CWP No.2938 of 2007 4 2(g)(viii) or Section 4(3)(ii) of the 1961 Act. Section 2(g)(viii) or Section 4(3)(ii) of the 1961 Act applies only if the land is Shamilat Deh. It is further argued that the land was auctioned by the Gram Panchayat. The auction registers for the years 1967 and 1980-81 clearly record that Guljar Singh participated in the auction and was the successful bidder. Guljar Singh is, therefore, estopped, from claiming ownership of the land in dispute. I have heard counsel for the parties, perused the impugned orders, the revenue record and the bid sheet appended with the writ petition, filed by the Gram Panchayat. Guljar Singh's claim to ownership rests on the plea that as his predecessor was in possession of Shamilat Deh before 1950, the land in dispute, is excluded from “Shamilat Deh” by virtue of Sections 2(g)(viii) and Section 4(3)(ii) of the 1961 Act. Guljar Singh's claim may have been tenable if the land in dispute was Shamilat Deh. The land in the present case was never recorded as Shamilat Deh. The jamabandis for the years 1940-41 and 1954-55 clearly record that the owner of this land is the “Gram Panchayat”. The provisions of the 1961 Act, including Section 2(g)(viii) and Section 4(3)(ii) of the 1961 Act apply to land, which is described as “Shamilat Deh” but does not effect land that was already owned by a Gram Panchayat. As the land in dispute was owned by the Gram Panchayat as per the jamabandis for the years 1940-41 and 1954-55, the argument that Section 2(g)(viii) and Section 4(3)(ii) of the 1961 Act, would exclude it from the ownership of the Gram Panchayat is entirely misplaced. The jamabandies unambiguously record that the land in dispute is not “Shamilat Deh” but is CWP No.2938 of 2007 5 owned by the Gram Panchayat. In order to fortify this conclusion, it would be necessary to mention that the jamabandis for the years 1965-66, 1970- 71 and 1975-76 also record the ownership of Gram Panchayat, thereby putting paid to the argument raised on behalf of Guljar Singh that the land in dispute does not belong to the Gram Panchayat. There can, therefore, be no room for any further debate about the ownership of the Gram Panchayat, much less on the pleas based on Sections 2(g)(viii) and 4(3)(ii) of the Act. The above finding apart, it would be appropriate to deal with the submissions based upon the provisions of Section 2(g)(viii) and 4(3)(ii) of the 1961 Act, so as to clear any ambiguity. Section 2(g)(viii) reads as follows : “Section 2(g) (viii) was shamilat deh, was assessed to land revenue and has been in the individual possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950;” A person claiming the benefit of Section 2(g)(viii) of the 1961 Act shall be required to prove the following : (a) the land was shamilat deh (b) the land was assessed to land revenue (c ) the land has been in the individual cultivating possession of co-sharers not being in excess of their respective shares (d) on or before 26.1.1950 Guljar Singh has miserably failed to prove the ingredients of CWP No.2938 of 2007 6 Section 2(g)(viii). The revenue record shows that the land in dispute is not “Shamilat Deh”, but is the ownership of the Gram Panchayat. The possession of Guljar Singh's predecessor, is not recorded as a co-sharer but on payment of `batai nisf' (half share of the produce) i.e. possession akin to the possession of a tenant. In addition, Guljar Singh has not produced any evidence to show the extent of his share holding. It would necessarily follow that even if the land was “Shamilat Deh”, in the absence of the ingredients of Section 2(g)(viii), Guljar Singh cannot claim ownership of the land in dispute. Another argument raised by counsel for the petitioner is based on the plea that Section 4(3)(ii) of the Act, excludes this land from the ownership of the Gram Panchayat. Section 4 (3)(ii) of the 1961 Act protects the rights of a person, who is :- (a) in cultivating possession of “shamilat deh”; (b) for a period of more than 12 years preceding the commencement of 1961 Act; and (c ) without payment of rent or by payment of charges not exceeding the land revenue and the cesses payable thereon. The ingredients of Section 4(3)(ii) are conspicuous by their absence, as the land is not described as “Shamilat Deh” but is recorded as the ownership of the Gram Panchayat. Furthermore, Guljar Singh's predecessors are recorded in possession on payment of 'batai nisaf' (half the produce) in the jamabandi for the year 1940-41. In view of what has been recorded herein above, particularly the consistent entries in the revenue record, recording the Gram Panchayat CWP No.2938 of 2007 7 as owner of the land in dispute from the year 1940-41, the Collector had no jurisdiction to declare Guljar Singh as owner of the land in dispute. The order dated 21.1.1999 passed by the Collector is, therefore, set aside. The order dated 15.7.2005, passed by the Commissioner holding that the Gram Panchayat is the owner is affirmed but the part of his order holding that Guljar Singh is entitled to protect his possession in view of Section 4(3) (ii) is set aside being legally incorrect. It would necessarily follow that the Gram Panchayat is the sole owner of the land in dispute and Guljar Singh is an unauthorised occupant of the disputed property. Consequently, CWP No.2938 of 2007 is allowed and CWP No.16763 of 2006 is dismissed. No order as to costs. 28.5.2010 ( RAJIVE BHALLA ) GS JUDGE