IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.19294 of 2007 Date of decision : 05.10.2009 Gram Panchayat, Village Rampur Haler ….Petitioner Versus Joint Development Commissioner (IRD), etc. ….. Respondent Present: Mr. Manohar Dadwal, Advocate for the petitioner. Mr. H.S.Gill, DAG, Punjab for respondents No.1 and 2. Mr. R.K. Joshi, Advocate for respondents No.3 to 15. *** S.S. SARON, J. The petition has been filed by the Gram Panchayat, village Rampur Haler, Tehsil Dasuya, District Hoshiarpur through Sh. Baldev Raj, Panchayat Officer seeking quashing of the order dated 31.5.2006 (Annexure P4) passed by the Joint Development Commissioner (IRD) exercising the powers of Commissioner (respondent No.1) whereby the order dated 12.12.2002 (Annexure P2) passed by the learned Additional Deputy Commissioner (Development), Hoshiarpur exercising the powers of Collector (respondent No.2) has been set aside. Respondent No.3 to 15 filed an application under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (“Act” – for CWP No.19294 of 2007 [2] short) for declaring them as owner of land measuring 54 kanals 15 marlas as detailed in the head note of the order dated 12.12.2002 (Annexure P1). It is alleged by the respondents 3 to 15 that their ancestors were proprietors of village Rampur Haler and were in possession of the land in question as owners, being proprietors of the village before the consolidation of holdings. They continued to be proprietors even after the consolidation of holdings. The ancestors of respondents No.3 to 15 remained in possession of the suit land even after consolidation proceedings. After the demise of the predecessors-in-interest of respondents No.3 to 15, the said respondents are in possession of the land in question. It is alleged that they thus became owners in possession of the suit land. According to respondents No.3 to 15, one Shinu, their predecessors-in-interest was in possession of the suit land as an owner being proprietor of the village. After the death of Shinu, his sons Dhollu and Gurditta came in possession of the suit land as owners. After their death, the suit land came in possession of Daya Ram, Hari Ram, Ram Singh and Rangeela all sons of Dholu; besides, Mela, Mangal, Dassu, Babu and Chhajju all sons of Gurditta. After their death, respondents No.3 to 15 came in possession of the suit land. The Additional Deputy Commissioner (Development) exercising the powers of Collector under the Act vide order dated 12.12.2002 (Annexure P2) dismissed the application of respondents No.3 to 15 for declaring them as owners. The Collector after referring to the revenue records that had been produced came to the conclusion that respondents No.3 to 15 were recorded as ‘gair marusi’ which means tenant at will. It was held that a tenant cannot deny the ownership of his landlord. The revenue entries showed the Gram Panchayat (petitioner) as absolute owner and that a ‘gair marusi’ cannot CWP No.19294 of 2007 [3] attain the status of owner at any stage. A reference was also made to the order dated 16.8.1995 (Ex. A13) passed by the learned District Judge, Hoshiarpur wherein in the discussion part it is recorded that since the Year 1941-42, the land was being shown in the column of ownership as; “shamlat deh hasab rasad khewat”. In the said order, the learned District Judge had also mentioned that ‘makbuja malkan’ had been recorded in the cultivation column. Even in the Jamabandis for the years 1984-85 and 1989-90 it was observed that in the column of cultivation, it was being shown as ‘maqbooza malkan’ and Kehar Singh (respondent No.7) was shown in unauthorized occupation of the suit land. It was observed that respondents No.3 to 15 never paid any chakota and batai to the gram panchayat (petitioner) and thus their possession was that of trespassers. Accordingly, the petition, therefore, was dismissed. Respondents No.3 to 15 aggrieved against the said order filed an appeal (Annexure P3) before the Joint Commissioner (IRD) Punjab (exercising the powers of Commissioner under the Act). The Joint Commissioner (IRD), exercising the powers of Commissioner vide impugned order dated 31.5.2006 (Annexure P4) has allowed the appeal. It was observed that respondents No.3 to 15 had proved their possession on the suit land right from the Jamabandi of the year 1921- 22 (Annexure R1). The claim of respondents No.3 to 15, it was observed, was based on uninterrupted and continuous possession over the land even before 26.1.1950 i.e. 12 years before the commencement of the Act. Their case was, therefore, covered by exceptions given under Section 4(3)(ii) and 2(g)(iii) of the Act. It was also observed that the land in question was defined as ‘shamlat deh hasab rasad khewat’ in the ownership column and under the cultivation and possession of predecessor-in-interest of CWP No.19294 of 2007 [4] respondents No.3 to 15 in the Jamabandi for the year 1945-46. The status of the suit land, it was observed, has to be maintained as it was 12 years before the commencement of the Act i.e. 26.1.1950. The land under challenge, therefore, did not vest in the Gram Panchayat (petitioner) but should continue to remain as ‘shamlat deh hasab rasad khewat’. Respondents No.3 to 15 it was held were owners to the extent of their respective shares as khewatdar for the land under their cultivation and possession, as successors- in-interest, of original khewatdars. The said order is assailed in the present petition. Reply by way of counter-affidavit of Sh. Chaman Lal, Block Development and Panchayat Officer, Dasuya, District Hoshiarpur has been filed on behalf of respondent No.2. It is submitted that after perusing the record and evidence led by both the parties, respondent No.2 has passed a well-reasoned and detailed order which is legal, just and fair and the same is liable to be maintained. It is further submitted that respondents No. 3 to 15 have no title or interest over the property as the same falls in the name of the Gram Panchayat (petitioner). The impugned order (Annexure P4), it is submitted, is before this Court for consideration. In fact the impugned order (Annexure P4), it is stated, is illegal and not based on any document and even misconstruction of the document. Respondents No.7 to 11 and 13 have filed their separate reply. It is submitted that the petition is barred on the principle of delay and laches. The impugned order (Annexure P4) was passed on 31.5.2006 whereas the petition has been filed on 13.12.2007 i.e. after a period of more than one and a half years. It is also stated that respondents had placed on record the copies of Jamabandis for the years 1921-22 (Annexure A1) to CWP No.19294 of 2007 [5] 1999-2000 (Annexure A8). Jamabandi for the year 1965-66 (Annexure A9), Khatoni Paimaish (Annexure A10), Naksha Haqdawar (Annexure A11) and copy of pedigree table (Annexure A12). In all these Jamabandis it is stated that the answering respondents No.7 to 11 and 13 are shown to be in possession of the property without payment of rent to anybody. In the Jamabandi for the year 1965-66 (Annexure P1), the said respondents are shown to be owners-in-possession and in column No.9 and 10 the possession of the said answering respondents is referable as ‘bishra partta malkan’. Thus, at no stage, the Panchayat came in possession of the land in dispute nor it vested in the Panchayat under Section 2 (g) of the Act. The land had always remained in possession of the said respondents and is not shamlat land within the definition of Section 2(g) of the Act. The order passed by the Commissioner, it is stated, is correct. Learned counsel for the petitioner has contended that the impugned order (Annexure P4) is absolutely illegal and from the documents placed on record, it is evident that the land is recorded in the revenue records as ‘shamlat deh’ and therefore, the same vests in the Panchayat. A reference has been made to the Jamabandi for the year 1965-66 (Annexure P1) which is Ex.A10 and the same it is submitted clearly shows that the land is mentioned as ‘shamlat deh’ and Daya Rama and others are shown in possession in the column of cultivation. Besides, it is submitted from the documents on record, it is clearly established that respondents No.3 to 13 are tenants at will and, therefore, they cannot deny the ownership of the Gram Panchayat (petitioner). The land in question, it is submitted, is not liable to vest in respondents No.3 to 15 and the Commissioner has given wrong and findings erroneous in this regard. CWP No.19294 of 2007 [6] Learned State counsel on the strength of the counter-affidavit filed by the Block Development and Panchayat Officer, Dasuya, District Hoshiarpur has submitted that the impugned order (Annexure P4) passed by the Commissioner is illegal, improper, unjust and against the records. Therefore, it is submitted that the same is liable to be set aside. Learned counsel appearing for respondents No.3 to 15 has however submitted that the land in question vests with respondents No.3 to 15 and the learned Commissioner under the Act has passed a well-reasoned and considered order. It is submitted that the revenue record placed on record shows that respondents No.3 to 15 have been in possession of the land from 1921-22 and therefore, their possession is liable to be protected in view of the provisions of Section 4(3)(ii) of the Act. I have given my thoughtful consideration to the pleadings of the parties, the documents on record and the contentions raised by the learned counsel appearing for the respective parties. The dispute in the case relates to the land measuring 54 kanals 19 marlas in the revenue estate of village Rampur Haler, Tehsil Dasuya, District Hoshiarpur. In the Jamabandis for the years 1921-22 (Annexure R1), 1941-42 (Annexure R2) and 1945-46 (Annexure R3) the ownership of the land is mentioned as that of “shamlat deh hasab rasad khewat” or ‘shamlat deh mazkoors’. The said Jamabandi gives the old khasra numbers or the pre-consolidation khasra numbers. The Jamabandi for the year 1999-2000 (Annexure R4) has been placed on record which however relates to land measuring 18 kanals 8 marlas and another parcel of land measuring 10 kanals 17 marlas is recorded in the ownership of Kehar Singh and others. However, the khasra numbers of the said Jamabandi 1999-2000 (Annexure R4) are not claimed by the CWP No.19294 of 2007 [7] respondents No.3 to 15 in their application for declaring them as owners. The details of the Khasra Nos. claimed are mentioned in the head note of the order dated 12.12.2002 (Annexure P2) passed by the Collector under the Act. Therefore, the said Jamabandi for the year 1999-2000 (Annexure R4) is absolutely irrelevant and out of context. In the Jamabandi for the year 2004-05 (Annexure R5) the land measuring 54 kanals 15 marlas is recorded as the ownership of the ‘panchayat deh’ and persons in occupation are recorded as ‘gair marusi’. Land which is recorded in the revenue records as shamlat deh is shamlat land for the common purposes of the village and it vests in the Panchayat after coming into force of the Act. Section 2(g) of the Act defines ‘shamlat deh’ as follows :- “2(g) “Shamilat Deh” includes (1) Land described in the revenue records as Shamlat Deh excluding abadi deh. (2) Shamlat Tikkas. (3) Land described in the revenue records as shamlat, tarafs, pattis, 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 the village community including, streets, lane, playgrounds, school, drinking wells, or ponds within abadi deh or gora deh; and CWP No.19294 of 2007 [8] (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 : (i) [-] (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 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 recorded in the Jamabandi or is supported by a valid CWP No.19294 of 2007 [9] deed; and is not in excess of the sharer in the Shamlat Deh. (v) is described in the revenue records as Shamlat, Taraf, Pattis, Pannas, and Thola and not used: according to revenue records for the benefit of the village community or 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, immediate before the commencement of this Act). (vii) [-] (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 thereto, immediately before the commencement of this Act. (h) “Shamilat Law” means:- (i) in relation to land situated in the territory which immediately before the Ist CWP No.19294 of 2007 [10] 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 Ist November, 1956, was comprised in State of Patiala and East Punjab States Union : the Pepsu Village Common Lands (Regulation) Act, 1954”. A perusal of the above shows that the land described in the revenue records as ‘Shamlat Deh’ excluding Abadi Deh is Shamlat Deh. The said Section 2(g) of the Act is in two parts. Clauses (1) to (5) relate to land which is included in the definition of ‘shamlat deh’ and Clauses (ii) to (vi), (viii) and (ix) are excluded from the definition of ‘shamlat deh’. The land which is recorded in the revenue records as shamlat deh vests in the Panchayats in terms of Section 4(1) of the Act. Section 4 provides for vesting of rights in Panchayats and non-proprietors. Section 4(1)(a) envisages 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 CWP No.19294 of 2007 [11] Panchayat having jurisdiction over that village is constituted. Therefore, land which is recorded as Shamlat Deh in the revenue records of the village vests in the Panchayat in view of the provisions of Section 4(1)(a) of the Act. The Commissioner in his impugned order (Annexure P4), however, has referred to the provisions of Section 4(3)(ii) of the Act which reads as under :- “Notwithstanding contained in clause (a) of sub-section (1) and in sub-section (2), shall affect or shall be deemed ever to have affected the:- (i) existing rights, title or interests of persons, who, though no entered as occupancy tenants in the revenue records, are recorded a similar status by custom or otherwise, such as Dholidar, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Muqararidars; (ii) rights of persons in cultivating possession of shamilat deh, for more than twelve years, immediately preceding the commencement of this Act, without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon; CWP No.19294 of 2007 [12] (iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.” Section 4(3)(ii), therefore, does not affect the rights of person in cultivating possession of shamlat deh land for more than 12 years immediately preceding the commencement of the Act, without payment of rent or payment of charges not exceeding the land revenue and cesses payable thereon. The Act received the assent of the President of India on 22.4.1961 and was published in the Punjab Gazette (Extra-ordinary) Legislative Supplement Part-I on 4.5.1961. Therefore, in order to claim the benefit of Section 4(3)(ii) of the Act, respondents No.3 to 15 are liable to show that they have been in cultivating possession of the Shamlat Deh land for more than 12 years immediately preceding the commencement of the Act on 4.5.1961. The Commissioner in his impugned order (Annexure P4) has merely recorded that respondents No.3 to 15 had proved their possession of the land right from the Jamabandi of the year 1921-22 (Annexure R1) and their claim was uninterrupted and continuous possession over the land even before 26.1.1950 i.e. 12 years before the commencement of the Act. According to the Commissioner, the case was fully covered by the exceptions given under Section 4(3)(ii) and 2(g)(iii) of the Act. In fact as already noticed the date of commencement of the Act is 4.5.1961 when it was published in the Punjab Gazette (Extra-ordinary). The date 26.1.1950 is for other purposes and it is not the date of commencement of the Act. Therefore, the Commissioner has in any case wrongly taken the date of 26.1.1950 to hold that respondents No.3 to 15 are in continuous CWP No.19294 of 2007 [13] possession for a period of 12 years preceding 26.1.1950. Even otherwise, Section 2(g)(iii) as has been referred to above shows that for the land not to be excluded in the definition of Shamlat Deh has to be partitioned and brought under cultivation by individual landholders before 26.1.1950. There is nothing to show that the land has been partitioned and was in individual cultivation and possession of the individual land holders. No document or material has been referred to in this regard. The revenue record mentions various persons to be in joint possession of the field numbers. Therefore, it cannot be said that the land had been partitioned amongst the shareholders or that it was brought under cultivation of individual land holders before 26.1.1950. The Jamabandi for the year 1921- 22 (Annexure R1) mentions the old khasra numbers. The missal haqiat is the first Jamabandi that is prepared after consolidation operations and it mentions the old and the new khasra numbers. The Jamabandi for the year 1965-66 (Annexure P1), which is the missal haqiat has been placed on record and it mentions the old and new khasra numbers in respect of the land measuring 54 kanals 19 marlas as detailed in the head note of the order dated 12.12.2002 (Annexure P2), which is the land claimed by respondents No.3 to 15. The land in the Jamabandi for the year 1965-66 (Annexure P1) records Panchayat Deh as the owner of the suit land. Daya Ram, Hari Ram sons of Dholu son of Shinu in equal share and Dasu, Babu, Chajju, Mela and Mangal sons of Gurdita son of Shinu in equal share are recorded in the cultivation column as ‘gair marusi’. In the said Jamabandi 27 kanals land is recorded as ‘majrooa’ and 27 kanals 9 marlas land as ‘gair majrooa’. Out of the land which is ‘gair majoora’ 7 kanals 9 marlas of land is recorded as ‘banjar kadim’ and 20 kanals is recorded as ‘gair mumkin khada’ (pits). CWP No.19294 of 2007 [14] Therefore, upto 1965-66, the land measuring 27 kanals 9 marlas was not being cultivated. In order to claim protection of Section 4(3)(ii) of the Act it has to be shown that the persons who claim such a right have been in cultivating possession of ‘shamlat deh’ land for a period of 12 years immediately preceding the commencement of the Act. The Jamabandi for the year 1921-22 (Annexure R1) shows some of the land to be Barani and some to be Banjar Kadim; besides, some to be Abadi. Some land is also mentioned as Banjar Jadid. The land which is recorded as ‘Banjar Kadim’, ‘Banjar Jadid’ and Abadi cannot be said to be under the cultivating possession of persons claiming to be in possession as it is not being cultivated. The Jamabandi for the Year 1941-42 (Annexure R2) has been placed on record which mentions the old khasra numbers and it relates to land measuring 36 bigha 2 biswas. Some of the land is mentioned as ‘banjar kadim’ and some as ‘barani’. Similarly, the Jamabandi for the year 1945-46 (Annexure R3) mentions the old khasra numbers and the said Jamabandi relates to the land measuring 10 bighas 9 biswas which is recorded as ‘banjar kadim’ and 14 bighas 2 biswas as ‘barani’. Banjar Kadim and Banjar Jadid is that land which is fallow and is recorded where the land has not been cultivated for 4 crops and 8 crops respectively. The possession of the land which is vacant vests in the owner as possession follows ownership. In respect of the land which is under cultivation it has to be shown that it was in cultivating possession for more than 12 years immediately preceding the commencement of the Act. As has already been noticed, in terms of Jamabandi for the year 1965-66 (Annexure P1), the land measuring 27 kanals 9 marlas is not being cultivated as 20 kanals land is ‘gair mumkin khada’ (pits) and 7 kanals 9 marlas is ‘banjar kadim’. Insofar CWP No.19294 of 2007 [15] as the remaining 27 kanals land is concerned, it is recorded as ‘barani’ which would mean under cultivation. However, it is not shown to be in cultivating possession for a period of 12 years immediately preceding the commencement of the Act. In fact it is to be shown that the land is being cultivated from 1949 which has not been shown. Cultivating possession for 12 years is akin to the concept of adverse possession and intermittent possession cannot be said to be in cultivating possession. In Kashi Bai v. Sudha Rani Ghose and others, AIR 1958 SC 434, the Supreme Court considered the case where intermittent working of coal mines to establish adverse possession. It was held that even though it may not be necessary for the purpose of establishing adverse possession over a coal mining area to carry on mining operation continuously for a period of 12 years, continuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession. It was held that thus, where what is proved is that the two inclines originally opened in a coal mine were worked in 1917 or 1918 by the predecessor in interest of the appellants, there were no mining operations till 1923 when they were restarted and were continued till 1926, that the operations ceased in 1926 and were recommended in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or not was not quite clear but there were no operations from 1939 when they were recommended by the appellant. It was held that intermittent working of the mine in the manner and for the period described above was wholly insufficient to establish possession which would constitute adverse possession or would lead to an inference of adverse possession in favour of the appellant. CWP No.19294 of 2007 [16] The term ‘cultivating possession’ in terms of the Act means that the land has been occupied with a view to raise crops and has been ploughed. Occupation of the land can be only by cultivation of the land. Therefore, in order to show cultivating possession for a