IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No. 1104 of 2010 DATE OF DECISION : 07.02.2011 Kehar Singh and others .... APPELLANTS Versus Gram Panchayat, village Rampur Haler, Tehsil Dasuya, District Hoshiarpur, and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. R.K. Joshi, Advocate, for the appellants. Mr. K.S. Dadwal, Advocate, for respondent No.1. * * * SATISH KUMAR MITTAL , J. This Letters Patent Appeal has been directed against the judgment dated 5.10.2009, passed by the learned Single Judge in Civil Writ Petition No. 19294 of 2007, filed by Gram Panchayat, village Rampur Haler, Tehsil Dasuya, District Hoshiarpur (respondent No.1 herein). In the said writ petition, the Gram Panchayat challenged the order dated 31.5.2006 (Annexure P-4), passed by the Joint Development Commissioner (IRD), exercising the powers of Commissioner, whereby the order dated 12.12.2002 (Annexure P-2) passed by the Additional Deputy Commissioner LPA No. 1104 of 2010 -2- (Development), Hoshiarpur (exercising the powers of Collector), dismissing the application filed by the appellants under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act'), for declaring them as owners of land measuring 54 kanals 15 marlas, was set aside and it was held that the said land does not vest in the Gram Panchayat. Vide order dated 5.10.2009, the learned Single Judge has set aside the order of the Commissioner, while coming to the conclusion that the appellants have not been able to show their cultivating possession of the shamilat deh land for more than 12 years immediately preceding the commencement of the Act. We have heard learned counsel for the parties. In the present case, the controversy is with regard to the land measuring 54 kanals 15 marlas. It is the stand of the Gram Panchayat that the said land was shamilat deh, and under the provisions of the Act, it has vested in the Gram Panchayat. Even in the revenue record, the Gram Panchayat has been recorded as owner of the disputed land. On the other hand, it is the stand of the appellants that this land does not fall under the definition of shamilat deh and the appellants as well as their predecessor were in possession of the same for more than 12 years immediately preceding the commencement of the Act, therefore, according to them, as per Section 2 (g) (5) (viii) and Section 4 (3) (ii) of the Act, the disputed land does not fall under the definition of shamilat deh and the same does not vest in the Gram Panchayat. Clause (viii) of sub-section (5) of Section 2 (g) of LPA No. 1104 of 2010 -3- the Act provides that the shamilat deh which 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, does not fall under the definition of shamilat deh, and as such this land does not vest in the Gram Panchayat. Clause (ii) of sub- section (3) of Section 4 of the Act provides that nothing contained in clause (a) of sub-section (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the 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. The net effect of these two provisions is that in order to prove the disputed land to be not the shamilat deh, the appellants, who filed the title suit under Section 11 of the Act, were required to prove that they were in uninterrupted and continuous cultivating possession of the disputed land for more than 12 years immediately preceding the commencement of the Act; or even on or before 26.1.1950. The learned Single Judge, after taking into consideration the various jamabandis, i.e. for the years 1921-22, 1941-42, 1945-46, 1965-66 and 1999-2000, has recorded a finding of fact that the appellants were not in cultivating possession of the disputed land for more than 12 years immediately preceding the commencement of the Act, which commenced on 4.5.1961, i.e. they have failed to show themselves to be in cultivating LPA No. 1104 of 2010 -4- possession of the shamilat deh on or before 26.1.1950. In this appeal, during the course of hearing, learned counsel for the appellants made two fold submissions. Firstly, that the aforesaid finding recorded by the learned Single Judge is perverse, as the same is against the record; and secondly that the entire land situated in village Rampur Haler falls under the hilly area, as defined under Section under Section 2 (bb) of the Act, therefore, in view of Section 14-A of the Act, the Gram Panchayat cannot claim any right of ownership on such land. After hearing learned counsel for the parties on the aforesaid submissions, we are of the opinion that the finding recorded by the learned Single Judge that the appellants have failed to prove their cultivating possession over the disputed land for more than 12 years immediately preceding the commencement of the Act, is based upon proper appreciation of the documentary evidence, particularly jamabandis, produced on record by both the parties and the same does not suffer from any perversity or illegality. The learned Single Judge has given detailed reasons and considered each and every entry in the jamabandis, available on record, and thereafter reached to the aforesaid conclusion. Merely because, in one of the jamabandis, the appellants have been shown to be in possession of part of the disputed land, it cannot be presumed that the said possession was their continuous cultivating possession. Thus, in our view, there is no illegality or perversity in the finding of fact, recorded by the learned Single Judge, regarding the cultivating possession on the disputed land. LPA No. 1104 of 2010 -5- As far as the second submission is concerned, the same does not arise at all in the present case. This point has been raised for the first time in this appeal. Section 14-A of the Act, which was inserted in the Act vide amendment Act No. 19 of 1964, shows that the vesting of any land in the Panchayat shall not affect any right of the State Government in the land. Sub-section (b) of Section 14-A of the Act saves the rights of the Government in respect of the lands in the hilly areas vested in the Panchayats or deemed to be vested in the Panchayats for purposes of Section 29 of the Indian Forest Act, 1927. The Panchayat in whom the land vests has been prohibited from exercising any right or to do any act in respect of any land in hilly areas, so as to contravene the provisions of the Indian Forest Act, 1927 or the Rules made thereunder. The fact as to whether under the provisions of the Act, the land vests in the Gram Panchayat or not, is not being affected by these provisions. The sole purpose of this provision is that on the land, which has vested or shall be deemed to be vested in the Panchayats, the Panchayats cannot exercise any right with respect to such land, which goes contrary to the Indian Forest Act, 1927. This is not the issue in the present appeal. The issue is whether the appellants have been able to prove that the disputed land does not vest in the Gram Panchayat and they are owners of the same, as they were in continuous cultivating possession of the land for more than 12 years immediately preceding the commencement of the Act. According to the finding recorded by the learned Single Judge, they have failed to prove such LPA No. 1104 of 2010 -6- possession. In view of the above, we do not find any merit in this appeal and the same is, hereby, dismissed. ( SATISH KUMAR MITTAL ) JUDGE February 07, 2011 ( M. JEYAPAUL ) ndj JUDGE