IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 18968 of 2007 .... Date of Decision : 14.1.2008 Narmail Singh & others. ....Petitioners. VERSUS State of Haryana & others .....Respondents CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. Mahavir Sandhu, Advocate, for the petitioners. ...... S.S.SARON, J. This civil writ petition has been filed under Articles 226/227 of the Constitution of India seeking a writ in the nature of certiorari quashing order dated 5.9.2007 (Annexure P-8) and order dated 30.8.2006 (Annexure P-7) passed by the Commissioner, Ambala Division, Ambala (respondent No.2) and District Collector, Ambala (respondent No. 3), respectively being in violation of the proposition of law as laid down by the Full Bench of this Court in the case of Jai Singh v. State of Haryana, (2003-2) Punjab Law Reporter 658 as also the mandatory provisions of the Punjab Village Common Lands (Regulation) Act, 1961. The land of which ownership is claimed by the petitioner is recorded in the revenue record i.e. Jamabandi for the year 1989-90 (Annexure-P.1) as “Shamilat Deh Hassab Rasad Jar Khewat”. In the column of cultivation, it is recorded as self cultivation of the share holders. CWP No. 18968 of 2007 [2] According to the learned counsel, this land, therefore, is “Bachat” land. The State of Haryana amended the provisions of Punjab Village Common Lands (Regulation) Act, 1961 (as applicable in Haryana) (`1961 Act' - for short) by Haryana Act No. 9 of 1992 on 11.2.1992. In terms of the amendment, clause (6) along with explanation was added to Section 2 (g) of 1961 Act which defines Shamilat Deh. In view of the amendment, the ownership of the land in question was transferred in favour of the Gram Panchayat Deh by way of mutation No. 374, (Annexure P-2) on 26.5.1992. The amendment of the 1961 Act as also consequences thereof were challenged by various proprietors of the State of Haryana. The matter was ultimately decided by a Full Bench in the case of Jai Singh v. State of Haryana (supra). In consequences of the decision of the Full Bench, the mutation that was effected on 26.5.1992, (Annexure P-2) was cancelled and the land came to be again recorded as Shamilat Deh Hassab Rasad Jar Khewat. The primary contention of the learned counsel for the petitioner is that the land in question is “Bachat” land which is to be partitioned amongst the share holders in accordance with their share. In support of his contention, learned counsel cites Gram Panchayat Gunia Majri v. Director, Consolidation of Holdings & others., 1991 PLJ 46. He, therefore, submits that the land is to be transferred in favour of the owners of the land, as is recorded in the Jamabandi for the year 2004-05 (Annexure P-9). Besides, that proprietary rights in the village are also established from the Shajra (Annexure P-10). We have given our thoughtful consideration to the contention of the learned counsel for the petitioner and perused the record. A perusal CWP No. 18968 of 2007 [3] of the Jamabandi for the year 1989-1990, (Annexure P-1), on which reliance has been placed by the learned counsel for the petitioner would show that the ownership of the land is recorded as Shamilat Deh Hasab Rasad Jar Khewat and in the column of cultivation it is recorded as follows:- “Makbooja Wasindgan Deh Hans Raj, Relu Ram, Ajmer Singh, Roshan Lal in equal shares. Share holders in self cultivation.” Position is same even after the cancellation of mutation on 26.5.1992, (Annexure P-2). Section 2(g) of 1961 Act reads as under:- “2. Definitions:- In this Act, unless the context otherwise requires:- (g) 'shamlat deh' includes- (1)lands described in the revenue records as Shamilat deh or Charand excluding abadi deh; (2)shamilat tikkas; (3)lands described in the revenue records as Shamilat, 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 the village; (4)lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds situated within the sabha area as defined in clause (mmm) of section 3 of the Punjab Gram Panchayat Act, 1952, excluding lands reserved for the common purposes of a village under section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation ) Act, 1948 CWP No. 18968 of 2007 [4] (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under section 23-A of the aforesaid Act; (4a) vacant land situate in abadi deh or gorah deh not owned by any person; (5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records; (6) Lands reserved for the common purposes of a village under section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the Gram Panchayat under section 23-A of the aforesaid Act. Explanation – Lands entered in the column of ownership of record of rights as “Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad” , “Jumla Malkan” or “Mushtarka Malkan” shall be shamilat deh within the meaning of this section.” but does not include land which - (i) becomes or has becomes shamilat deh due to river action or has been reserved as shamilat in villages subject to river action except shamilat deh entered as pasture, pond or playground in the revenue records; (ii) has been allotted on quasi-permanent basis to a displaced person; (ii-a) was shamilat deh, but has been allotted to any person CWP No. 18968 of 2007 [5] by the Rehabilitation Department of the State Government, 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 shamilat deh and is so recorded in the Jamabandi or is supported by a valid deed; (v) is described in the revenue records as shamilat, taraf, pattis, pannas, and tholas 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) ...... (omitted) (viii) was shamilat 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 shamilat deh on or before the 26th January, 1950; or (ix) is used as a place of worship or for purposes of subservient thereto.” A perusal of the above shows that lands described in the revenue records as Shamilat Deh of Charand excluding Abadi Deh are Shamilat Deh. Section 2(g) is in two parts, the first part i.e. From clauses (1) to (6) CWP No. 18968 of 2007 [6] relates to lands which are included in the definition of Shamilat Deh; the second part from sub clauses (i) to (ix) are those lands which are not included in Shamilat Deh. In Jai Singh's case (supra), the challenge was to the insertion of clause (6) to Section 2(g) of the 1961 Act. The Legislature of Haryana State enacted Act No.9 of 1992 in pursuance of which the 1961 Act was amended. In terms of the amendment the proviso to sub-section (5) of clause (g) of Section 2 of the 1961 Act was omitted and after sub-clause (5), sub-clause (6) to Section 2(g) of the 1961 Act was added and the effect of that was that even the land which was entered in the column of ownership of record of rights as “Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad” was to be `Shamilat Deh' within the meaning of Section 2(g). The Full Bench in Jai Singh's case (supra) considered the matter with regard to sub-clause (6) of Section 2(g) of the 1961 Act and the explanation thereto and it was held that the same is only an elucidation of the existing provisions of the 1961 Act read with the provisions contained in the East Punjab (Consolidation and Prevention of Fragmentation) Act, 1948. In the present case, the land is admittedly described in the revenue record as `Shamilat Deh' The same is not described as “Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad” so as to attract the provisions of clause (6) of Section 2(g). The land in the present case would be `Shamilat Deh' within the meaning of clause (1) Section 2(g) of the 1961 Act. Therefore, in terms of Section 4(1) of the 1961 Act, the land which is recorded in the revenue records as Shamilat Deh, is to vest in the Gram Panchayat. Section 4 provides for vesting of right in Panchayat and non-proprietors. Section 4 (1) and 4(2) of the 1961 Act read as under:- “4. Vesting of rights in Panchayat and non-proprietors:- CWP No. 18968 of 2007 [7] (1)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 interests whatever in the land, - (a) which is included in the shamilat deh of any village and which has not vested in a Panchayat under the shamilat law shall, at the commencement of this Act, vest in 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. (b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non- proprietor, shall, on the commencement of shamilat law, be deemed to have been vested in such non-proprietor. (2) Any land which is vested in a Panchayat under the shamilat law shall be deemed to have been vested in the Panchayat under the Act. (3) xxx xxx xxxx” A reading of Section 4(1) shows that any land which is included in the Shamilat deh of any village and which has not vested in a Panchayat under the shamilat law shall, at the commencement of 1961 Act, vest in the Panchayat constituted for such village. Therefore, the land in question being Shamilat Deh land vests in the Panchayat. In order to come under the exclusionary clause, it has to be shown by the petitioners that they have CWP No. 18968 of 2007 [8] come within one of the exclusionary clauses as provided in clauses (i) to (ix) of Section 2(g) of 1961 Act. The land in question has admittedly not been partitioned and in fact in the Jamabandi for the year 1989-90 (Annexure P-1) it is recorded to be in cultivating possession in equal shares of the share holders. The requirement of clause (iii) amongst the excluded clauses is that the land has been partitioned and brought under cultivation by individual land holders before 26th January, 1950; and the term of clause (viii) is that the land was shamilat deh, was assessed to land revenue and has to be in individual cultivating possession of co-sharers in such `shamilat deh' on or before 26th January, 1950. The case of the petitioners, as has been noticed above, is that the land in question is `Bachat' land. `Bachat' lands are those lands which are left after consolidation proceedings and are an excess area over and above the consolidation pool. These are not to be re-transferred under Section 21(1) of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The said land is kept as `Bachat' land. Nothing has been placed on record to show as to when the consolidation proceedings took place in the village and how this land was left as `Bachat' land in the consolidation proceedings. No Scheme of the consolidation has been shown to establish that it was `Bachat' land. On the basis of entries in the revenue record, the land in question cannot be construed to be `Bachat' land. Therefore, in our view the contention of the learned counsel for the petitioners that the land in question is `Bachat' land is clearly mis- conceived. The case of Gram Panchayat Gunia Majri (supra), relied upon by the learned counsel for the petitioners, is applicable to the `Bachat' land CWP No. 18968 of 2007 [9] which has remained unutilized. After utilization of land for all common purposes it is be returned to its original proprietors from whom it was taken during consolidation by imposing a pro-rata cut on holdings of proprietors. It has not been shown by the petitioners that the land in question was taken in possession by the consolidation authorities by imposing pro-rata cut on the holdings of the proprietors. A reference to the Jamabandi for the year 2004-05 (Annexure- P.9) and the `Shajra Nasab' of Village Bharanpur, Tehsil Naraingarh for the year 1958-59 (Annexure-P.10) are also inconsequential. It may be noticed that the Khasra numbers of the land in Jamabandi for the year 2004-05 (Annexure-P.9) are entirely different from the land of which ownership is claimed i.e. land comprised in Khasra No.33 Min. (2-0) `Barani' as per Jamabandi for the year 1989-90 (Annexure-P.1). The order dated 25.4.1990 (Annexure-P.5) passed by the Assistant Collector Ist Grade, Naraingarh in proceedings under Section 7(2) of the 1961 Act also relates to Khasra No.33 Min. (2-0). Even in the order dated 8.8.2002 (Annexure-P.6) passed by the Assistant Collector Ist Grade, in execution of the order dated 25.4.1990 (Annexure-P.5), the execution was sought of the land comprised in Khasra No.33 Min. (2-0). The order dated 30.8.2006 (Annexure-P.7) passed by the District Collector, Ambala against the order dated 8.8.2002 (Annexure-P.6) is also with respect to land comprised in Khasra No.33 Min. (2-0). In short in all the orders that have been placed on record the dispute is in respect of the land comprised in Khasra No.33 Min. (2-0) which is the land in the Jamabandi that has been placed on record is of the year 1989-90 (Annexure- P.1). Therefore, the Jamabandi for the year 2004-05 (Annexure-P.9) is evidently of entirely different land and has no relation to the land in dispute. CWP No. 18968 of 2007 [10] As such the `Shajra Nasab' of the year 1958-59 (Annexure-P.10) is also inconsequential. In view of the above, we are clearly of the view that as per revenue record, the land in question is `Shamilat Deh' and, therefore, it is to vest in the Gram Panchayat in view of Section 4(1) of the 1961 Act. The process of sanctioning mutation in favour of the Gram Panchayat, in view of amendment by way of Act No. 9 of 1992 which added clause (6) to Section 2 (g) of the 1961 Act was not necessary as de hors the said amendment, the land was Shamilat Deh and was recorded in the revenue record as such. In fact, reading of clause (6) to Section 2(g) clearly shows that the lands which were reserved for the common purposes of a village under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, the management and control whereof vests in the Gram Panchayat under Section 23-A of the aforesaid Act was included as `Shamilat Deh'. This is evident from the explanation which records that the lands entered in the column of ownership of records of right as “Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad” shall be `Shamilat Deh' within the meaning of the said Section. `Jumla Malkan' land is land of the owners of the proprietors. Therefore, that does not relate to the `Shamilat Deh' land. There was in fact no need for the State of Haryana to sanction mutation in favour of Gram Panchayat. In any case, this having been undone by the State itself would not warrant any further consideration. Accordingly, there is no merit in this petition and the same is dismissed. (S.S. SARON) JUDGE CWP No. 18968 of 2007 [11] January 14, 2008. (DAYA CHAUDHARY) JUDGE sn/hsp