CWP No.16757 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P. No.16757 of 2007 Date of decision: 3.7.2008 Patram V. Gram Panchayat Katwar and others CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR HON'BLE MR. JUSTICE SHAM SUNDER Present: Shri Anil Ghanghas,Advocate, for the petitioner. J.S.Khehar,J.(Oral) Through the instant writ petition, the petitioner has impugned the order passed by the Commissioner, Hisar Division, Hisar dated 28,8,2007 wherein it has been concluded that the land under reference is in unauthorised occupation of the petitioner,although the same is shamlat land. It is,therefore that the claim of the petitioner has been dismissed by the Commissioner, Hisar Division,Hisar while upholding the order passed by the Collector, Bhiwani dated 23.8.2001. The first contention of the learned counsel for the petitioner is that the determination rendered by the afore-stated Collector and Commissioner, respectively, are in clear violation of the definition of the term “shamlat deh” in Section 2(g) of the Punjab Village Common Lands ( Regulation) Act,1961 ( hereinafter referred to as the “Act”). Since reliance has been placed on Section 2(g) of the Act, the same is being extracted herein: “2(g) “shamilat deh “ includes- (1)lands described in the revenue records as ( Shamilat Deh CWP No.16757 of 2007 2 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 within abadi deh or gorah deh; and 5. lands in any village described as banjar qadim and used for common purposes of the village according to revenue records; (i)- but does not include land which- (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 the 26th January,1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the shamlat deh is so recorded in the jamabandi or is supported by a valid deed and is not in excess of the share of the co-sharer in the shamlat deh; CWP No.16757 of 2007 3 (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 villager 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, a house or for cottage industry immediately 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) “ shamlat law” means- (i) in relation to land situated in the territory which immediately before the Ist November,1956, was comprised in the State of Punjab, the Punjab Village Common Lands (Regulation)Act,1953; or (ii) in relation to land situated in the territory which immediately before the Ist November, 1956, was comprised in the State of Patiala and East Punjab States Union, the Pepsu Village Common Lands (Regulation) Act,1954; (i) “State Government” means the Government of the CWP No.16757 of 2007 4 State of Punjab.” The pointed contention of learned counsel for the petitioner is that in view of clause (v) of the proviso under section 2(g) of the Act, since the land under reference is in occupation and cultivation of the petitioner, the same cannot be treated as shamlat deh and, therefore, it cannot be deemed to be in unauthorised occupation of the petitioner. While examining the first contention raised by the counsel for the petitioner, as has been noticed in the foregoing paragraph, it is necessary to refer to clause (3) of Section 2(g) of the Act extracted hereinabove, which expressly treats “shamlat”, “tarafs”, “pattis”, “pannas” and “tholas” as separate and distinct, while describing the nature of the land. Whereas, the exception under clause (v) of the proviso under section 2(g) of the Act notices, “shamlat taraf”, “pattis”, “pannas” and “thola” as falling within the exception. As per the revenue record of the year 1907- 08, the land under reference has been described as “shamlat patti”. It does not, therefore, fall within the term “shamlat taraf”, “pattis”, “pannas” and “thola” as has been incorporated in the exception because “shamlat patti” is not excluded under the clause relied upon by the learned counsel. It is,therefor, not possible for us to accept that the land under reference falls within Clause (v) of the proviso under section 2(g) of the Act. The second contention advanced by the learned counsel for the petitioner is based on Section 4 of the Act. The aforesaid provision is being extracted herein: “ 4. Vesting of right in Panchayats and non-proprietors:- (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 shamlat deh of any village and CWP No.16757 of 2007 5 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 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 the shamlat law, be deemed to have been vested in such non-proprietor. (2). Any land which is vested in a panchayat under the shamlat law shall be deemed to have been vested in the panchayat under this Act. (3). Nothing contained in clause (a) of sub-section(1) and in sub-section (2) shall effect or shall be deemed ever to have affected the- (i) existing rights, title or interest of persons who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimarks, Basik-huopahus, Saunjidars, Muqararidars; (ii)rights of persons in cultivating possession of shamlat deh for more than twelve years immediately preceding the commencement of the Act, without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon; (iii)rights of a mortgagee to whom such land is mortgaged with possession before the 26th January,1950.” CWP No.16757 of 2007 6 The pointed contention of the learned counsel for the petitioner is based on the exception contained in clause (ii) of Sub Section 3 of Section 4 of the Act, which mandates that in case a person is in cultivating possession for more than 12 years, immediately prior to the commencement of the Act, the land in his possession will not vest in the panchayat. Having considered the second contention advanced by the learned counsel for the petitioner, we find no merit therein as well. The exception under Clause (ii) of sub section 3 of Section 4 of the Act is applicable to only such lands which come to vest in the Panchayat under the provisions of the Act, and not to any other land. Since it is not a matter of dispute, as is apparent from the Jamabandi for the year 1907-08, that even prior to the enforcement of the Act under reference, the land in question was described as “shamlat patti”, and as such it was obviously vested with the panchayat even prior to the enforcement of the Act, the exempting clause under section 4(3) of the Act will not be applicable to this case. No other point was urged by the counsel for the petitioner. For the reasons recorded hereinbefore, we find no merit in the instant petition and the same is, accordingly, dismissed. ( J.S. KHEHAR ) JUDGE 3.7.2008 ( SHAM SUNDER ) sks JUDGE