LPA No.492 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.492 of 2011 (O&M) DATE OF DECISION: MARCH 14, 2011 Ujagar Singh .....APPELLANT Versus Gram Panchayat, Behra and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE M. JEYAPAUL --- Present: Ms. Amita Gupta, Advocate, for the appellant. .. SATISH KUMAR MITTAL, J. This Letters Patent Appeal has been directed against the order dated 22.11.2010 passed by the learned Single Judge, whereby the writ petition (CWP No.20813 of 2008) filed by the respondent-Gram Panchayat challenging the order dated 11.6.2007 passed by the Director, Land Record, Punjab [exercising the powers under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948], was allowed and the appellants were given liberty to establish their ownership claim with regard to the disputed land before the authority under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Village Common Lands Act') . Though this appeal is barred by limitation as along with the appeal the appellants have filed an application (CM No.1310 of 2011) for LPA No.492 of 2011 (O&M) -2- condonation of 78 days of delay in filing the appeal, however, without taking the said delay into consideration, we have heard the learned counsel for the appellant on merits and gone through the impugned order passed by the learned Single Judge. In the present case, the appellant and the proforma respondents filed an application under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as `the Act') before the Director, Consolidation for re-distribution of the land in dispute among the proprietors of the village as according to them the disputed land is Bachat Land. According to them, at the time of consolidation, this land was taken from the holdings of the right holders after putting excessive cut for use of the common purposes of the village, but after utilizing the said land for common purposes, some of the land was left unutilized which is called as Bachat Land and which is to be redistributed among the proprietors. The Director while treating the disputed land as Bachat Land has ordered for re-distribution of the land to the proprietors according to their share. The Gram Panchayat challenged the said order by filing the aforesaid writ petition. The learned Single Judge after hearing both the parties, allowed the said writ petition after coming to the conclusion that the disputed land cannot be taken as Bachat Land. Actually, during the consolidation, after applying a pro-rata cut, a Jumla Mushtarka Malkan was created for the common purposes of the village. In the revenue record, the said land was recorded as Jumla Malkan Wa Digar Haqdarana Arazi Hasab Rasad Raqba. The learned Single Judge has held LPA No.492 of 2011 (O&M) -3- that the Director, Consolidation has erroneously taken the said land as Bachat Land unmindful of the difference between the Jumla Mushtarka Malkan and Bachat Land. According to the learned Single Judge, Jumla Mushtarka Malkan land, which was reserved during the consolidation for the common purposes of the village, cannot be redistributed or partitioned among the proprietors. It has been further held that the question whether the land in dispute is Jumla Mushtarka Malkan land or Bachat Land, is a question of fact which can be gone into or raised before the appropriate forum. Therefore, the order of the Director, Consolidation ordering re- distribution of the land in dispute by taking it as Bachat Land was held to be not sustainable. After hearing the learned counsel for the appellant and going through the impugned order as well as the order of the Director, Consolidation, we do not find any illegality in the order of the learned Single Judge. During the consolidation, the land in dispute was created after applying a pro-rata cut from the holdings of the proprietors as Jumla Mushtarka Malkan land to be used for common purpose of the village. All such lands, which have been reserved as per the consolidation scheme, whether utilized or not, shall vest with the Gram Panchayat even though in the column of ownership the entries may be Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat etc. The Bachat Land is the land which was contributed by the proprietors on the basis of pro-rata cut during the consolidation proceedings and which was not even ear-marked for the common purpose in the consolidation scheme. Such land, which has LPA No.492 of 2011 (O&M) -4- been entered in the column of ownership as Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, does not vest in the Gram Panchayat and is to be re-partitioned among the proprietors. Whether the land in dispute was reserved for common purpose of the village during the consolidation scheme or whether it was not so reserved, and the same be taken as Bachat Land, are questions of fact which can be gone into by the authorities under the Village Common Lands Act and not by the Director, Consolidation. Even, as per the decisions of the Supreme Court in Gram Panchayat Nurpur v. State of Punjab and others, 1997(1) PLJ 268 and Gram Panchayat village Sidh v. Additional Director Consolidation of Holdings Punjab and others, 1997(1) PLJ 313, Director, Consolidation has no jurisdiction to decide the issue whether the land in dispute vests in the Gram Panchayat or whether it vests in the proprietors being Bachat Land. This issue can only be decided by the Collector under the Village Common Lands Act. Therefore, in our opinion, the Director, Consolidation was having no jurisdiction to re- distribute such land on an application filed by the proprietors of the village under Section 42 of the Consolidation Act. The proprietors (appellants), if they are having any grouse, can claim their ownership right on the Jumla Mushtarka Malkan land, which, according to them, was not reserved for common purpose of the village and was not utilized for those purpose, by availing the remedy to file a title suit under Section 11 of the Village Common Lands Act where they can establish by leading evidence that the disputed land is a Bachat Land and the same does not vest in the Gram LPA No.492 of 2011 (O&M) -5- Panchayat. Thus, in our opinion, the learned Single Judge has rightly set aside the order of the Director, Consolidation with liberty to the appellant and proforma respondents to establish their title claim on the disputed land before the appropriate forum under the Village Common Lands Act. In view of the aforesaid, we do not find any illegality in the impugned order passed by the learned Single Juge. Hence, the appeal is dismissed. (SATISH KUMAR MITTAL) JUDGE March 14, 2011 ( M. JEYAPAUL ) vkg JUDGE