IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.195 of 2011(O&M) Date of decision: 18.05.2011 Kirpal Singh and others …..Appellants versus Assistant Collector Grade-I, Nakodar and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Rakesh Kumar Garg Present: Mr.Gurcharan Singh Bhatia, Advocate for the appellants Jasbir Singh, J. (Oral) C.M. No.517 of 2011 In view of reasons mentioned in this application, which is accompanied by an affidavit, it is allowed and 68 days delay in re-filing the appeal stands condoned. LPA No.195 of 2011 This appeal has been filed against a judgment passed by the learned Single Judge on 28.6.2010, dismissing CWP No.4411 of 2010, filed by the appellants LPA No.195 of 2011(O&M) In the above said writ petition, the appellants had laid challenge to an order passed by the Collector, dismissing their suit, filed under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (in short, the Act), claiming ownership of the land in dispute. Further challenge was made to an order, dismissing their appeal on 1.4.2009. As per case of the appellants, they had purchased the land in question from a co-sharer in Jumla Mushtarka Malkan land and are in possession of the same since for the last more than four decades. It is an admitted fact that earlier also, an application was filed against them by the Gram Panchayat under Section 7 of the Act, for their ejectment from the land in question, which was allowed. They also failed in appeal. It is also an admitted fact that before initiating the present litigation, the appellants had gone to the Civil Court, claiming title in the land in question and also for grant of permanent injunction against the Gram Panchayat. Their suit was dismissed on 6.8.1986. They failed in appeal on 8.11.2002. Thereafter, it appears that again they filed a Civil Suit for permanent injunction, which was dismissed as withdrawn on 20.2.2010. In the meantime, they filed an application under Section 11 of the Act, claiming ownership of the property in dispute, which was dismissed by the Collector vide order dated 8.11.2007, by observing as under:- “The arguments of both the learned counsel for the parties were heard. It was stated by the counsel for the petitioners that the land in dispute is their ownership. Gram Panchayat Singhpur want to forcibly evict them from the land. This land has been purchased by them from the residents of village Singhpur. According to Jamabandi for the year 1997- 2 LPA No.195 of 2011(O&M) 98 in the column of ownership, their name exists. Their names also exist in the columns of ownership and cultivation of Khasra Girdawari from the year 1998-99 to 2002-03. The abovesaid land was of Jumla Mushtarka Malkan of village Singhpura, which was sold by them to the petitioners in the year 1984. Even as per the record of Revenue Department, the name of Gram Panchayat Singhpur no where exists in the documents. The averment of the Gram Panchayat is incorrect that the abovesaid land was taken on lease by the petitioners, whereas their ownership is running since 1984 till date and possession is also running in their name. Out of the abovesaid land in dispute 7 kanals 18 marlas was purchased vide sale deed dated 24.5.1984 from Sh.Satkar Singh son of Sh.Thana Singh and vide sale deed dated 19.3.1984 the land measuring 2 kanals 8 marlas purchased from Sh.Achhar Singh son of Kesar Singh and vide sale deed dated 22.2.1984 the land measuring 10 kanals 18 marlas was purchased from Shri Liakat Singh son of Gurdit Singh and similarly vide sale deed dated 22.6.1984, the land measuring 8 kanals 7 marlas was purchased from Teja Singh son of Bhagat Singh. These sale deeds have been entered in the record of revenue department. In the ,end, it was requested that the petition of the petitioners be accepted and the petitioners may be declared as owner of the land in dispute. The learned counsel for the respondent said that petition of the petitioners is liable to be dismissed. They have no right to file the case. It is correct that the abovesaid disputed land is of Jumla Mushtarka Malkan, but the 3 LPA No.195 of 2011(O&M) abovesaid Jumla Mushtarka Malkan had given this land to Gram Panchayat as source of income of Panchayat. In the year, the abovesaid land in dispute was given to the petitioners on lease, but on the expiry of lease period, the illegal possession was taken by the petitioners over the abovesaid land. The cases which have been filed by the petitioners till date, in all those cases their claim has been rejected. A civil suit regarding the abovesaid land was filed by the petitioners in the learned Civil Court, Nakodar, which was dismissed by the learned court on 6.8.1986. Similarly, an appeal was also filed by the petitioners before Additional District Judge, Jalandhar, which was also dismissed by the learned court on 8.11.2002. In similar way, the petitioners have also been evicted from the land in dispute vide order dated 10.5.1988 passed by Collector-cum-District Development and Panchayat Officer, Jalandhar. Similarly, the appeal filed by the petitioners was also dismissed on 18.7.1990 by the learned Director, Panchayat, Punjab. In the end, it was also said by the counsel for the respondent that the petition of the petitioners may be dismissed and the Gram Panchayat be declared as owner of the land in dispute. On the perusal of the record came on the file as above, after hearing the argument of both the learned counsel for the parties, enquiry conducted at the spot and after perusing the documents produced before, I have reached to this conclusion that during the consolidation proceedings, after applying pro- rata cut to the lands of landholders of the village, the land in 4 LPA No.195 of 2011(O&M) dispute was kept for the common purposes of the village and under section 23-A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, the management and control of such lands is with the concerned Gram Panchayats. Gram Panchayat, Singhpur have been giving the abovesaid disputed land on lease and the income received from the same having been spent on the development works of the village. It is also pertinent to mention here that in the year 1979, the abovesaid land in dispute was taken on lease by the petitioners from Gram Panchayat, Singhpur, but after the expiry of lease period, the possession was not left by the petitioners. The petitioners have completely failed to prove their ownership over the land in dispute.” They failed in appeal. Their writ petition was dismissed by the learned Single Judge by noting the facts mentioned above. It was also noted that in the revenue record, land was shown as Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad Raqba. By making reference to Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949, it was rightly opined that such like land shall remain under the management and control of the Gram Panchayat. It was also noticed that to prove that the land was the Bachat land and it was partitioned by the land owners, no document was brought on record. The learned Single Judge observed as under:- “I have heard counsel for the petitioners, perused the impugned orders, the paper book and am of the considered opinion that the application filed under Section 11 of the Act and the appeal 5 LPA No.195 of 2011(O&M) were rightly dismissed. The land in dispute was admittedly described in the revenue record as Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad Raqba. Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as `the 1949 Rules') provides that land reserved for common purposes, created by applying a pro rata cut on the holdings of the co-sharers shall be described as Jumla Mushtarka Malkanan Wa Digar Haqdaran Arazi Hasab Rasad Raqba. Though ownership of such land vests in the proprietary body, management and control thereof vests in the Gram Panchayat. Rule 16 of the 1949 Rules reads as follows :- 16(ii) In an estate or estates where during consolidation proceedings there is no shamlat deh land or such land is considered inadequate, land shall be reserved for the village Panchayat and for other common purposes, under Section 18 (c) of the Act, out of the common pool of the village at the scale given in the Schedule to these rules. Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi of proprietors and non proprietors) shall vest in the proprietary body of the estate or estates concerned and it shall be entered in the column of ownership of record of rights as (Jumla Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba). The management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village proprietary body and the Panchayat shall have the right to utilise the income derived from the land so reserved 6 LPA No.195 of 2011(O&M) for the common needs and the benefits of the estate of estates concerned.” In view of the nature of the land, it belies comprehension as to how the petitioners could have purchased this land. The argument that the land in dispute was left over after utilisation for common purposes has not been proved by reference to any evidence much less any document prepared during consolidation. It would be appropriate to state that the land left over after utilisation for common purposes is more often than not redistributed amongst right holders during consolidation proceedings. In the absence of any evidence that the land was left over during consolidation and was, therefore, available for sale, the arguments raised by counsel for the petitioners must necessarily fail. The argument that the Assistant Collector allowed partition proceedings holding that the petitioners are owners of the land in dispute must also fail, as the Gram Panchayat was not impleaded as a party to these proceedings. Even otherwise, the jurisdiction to decide whether a particular piece of land vests or does not so vest in a Gram Panchayat falls to the exclusive jurisdiction of the Collector, exercising powers under Section 11 of the Act. An argument that the Full Bench in Jai Singh and others Vs. State of Haryana 2003(2)PLR 658, has held that “Bachat land” vests in the proprietors may have been of some avail, if the petitioners had established that this land was left over after consolidation as “Bachat land”. 7 LPA No.195 of 2011(O&M) We feel that the order passed is perfectly justified. Counsel for the appellants has failed to show any illegality in the order passed. Furthermore, a clear finding of facts has been given by the Courts below that at one time, the land was taken on lease by appellants. It is also clear on record that the vendors from whom the land was purchased were not competent to sell the land in question. Appellants are not the right holders in the village. No case is made out for interference. Dismissed. (Jasbir Singh) Judge 18.05.2011 (Rakesh Kumar Garg) gk Judge 8