HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.14001 of 2011 (O&M) Date of Decision: 04.08.2011 **** Amar Singh . . . . Petitioner VS. Financial Commissioner, Haryana & Ors. . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Amit Jain, Advocate for the petitioner ***** SURYA KANT, J. (ORAL) (1). The petitioner seeks quashing of the order dated 26.02.2010 (Annexure P2) passed by the Collector, Yamuna Nagar whereby the suit under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (in short, ‘the Act’) filed by the petitioner and the pro forma respondents to declare them joint owners-in- possession of the suit land measuring 333K – 14M situated in village Jagdhouli, District Yamuna Nagar, has been dismissed. He also assails the orders dated 01.09.2010 and 20.03.2011 (Annexures P3 & P4, respectively) dismissing the petitioner’s appeal and revision petition against the said order (Annexure P2). CWP No.14001 of 2011.doc - 2 – (2). The precise claim of the petitioner and his co-plaintiffs as pleaded before the Collector was that they are proprietors of the village and the suit land was the part of a big chunk contributed by them on pro rata basis at the time of Consolidation for common purposes. The suit land, however, was not utilized for any ‘common purposes’ and is ‘bachat’ land (unutilized), which is in cultivating possession of the proprietors as per their respective share. Their case was that since the suit land was not utilized for any common purpose, it is liable to be restored back to the proprietors and the mutation sanctioned in favour of the Gram Panchayat in respect thereto, is illegal and unconstitutional. It was also urged that the proprietors were/are in continuous possession of the suit land prior to 26.01.1950. (3). The Gram Panchayat contested the suit and disputed the petitioner’s claim maintaining that the suit land was shamlat deh and has been rightly vested in the Gram Panchayat. It was denied that the plaintiffs own any share in the shamlat land or they were in individual possession prior to 26.01.1950. (4). The Collector framed the following issues:- CWP No.14001 of 2011.doc - 3 – 1. Whether the plaintiffs are coming in possession of the disputed land since the time of their ancestors as co- sharers and less than their respective share? OPP. 2. Whether the disputed land was reserved for common purposes and whether the disputed land is bachat land? OPP 3. Whether Gram Panchayat has no concern with the disputed land or that Gram Panchayat has right to give the disputed land on lease ? OPP 4. Whether disputed land comes in the definition of shamlat deh and vests in the Gram Panchayat? OPD 5. Whether the plaintiffs individually are coming in possession of the disputed land since before 26.1.1950 on the land less than their share and also the revenue is not being paid? OPD 6. Whether the present suit is hit by the principles of res judicata? OPD 7. Whether the plaintiffs have got no right to file the present suit and whether they are estopped from filing the present suit? OPD 8. Relief.” (5). Both the parties led their oral as well as documentary evidence. CWP No.14001 of 2011.doc - 4 – (6). It may be mentioned here that a Full Bench of this Court in Jai Singh and others vs. State of Haryana, 2003 (1) PLR 429 has authoritatively ruled as follows:- “The land reserved for common purposes under Section 18(c), which might become part and parcel of a scheme framed under Section 14, for the areas reserved for common purposes, vests with the Government or Gram Panchayat, as the case may be, and the proprietors are left with no right or interest in such lands meant for common purposes under the scheme. There is nothing at all mentioned either in the Act or the rules or the scheme, that came to be framed, that the proprietors will lose right only with regard to land which was actually put to any use and not the land which may be put to common use later in point of time. In none of the sections or rules, which have been referred to by us in the earlier part of the judgement, there is even slightest inkling that the scheme envisages only such lands which have been utilized. That apart, in all the relevant sections and rules, words mentioned are ‘reserved or assigned’. Reference in this connection may be made to sub-section (3) of Section 18 and CWP No.14001 of 2011.doc - 5 – Section 23-A. The provisions of the statute, as referred to above, would, thus, further fortify that reference is to land reserved or assigned for common use, whether utilized or not. xxxx xxxx xxxx xxxx “In view of the discussion made above, we hold that:- i. sub-section (6) of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the explanation appended thereto, is only an elucidati0on of the existing provisions of the said Act read with provisions contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948; ii. the un-amended provisions of the Act of 1961 and, in particular, Section 2(g)(1) read with Sections 18 and 23-A of the Act of 1948 and Rule 16(ii) of the Rules of 1949 cover all such lands which have been specifically earmarked in a consolidation scheme prepared under Section 14 read with Rules 5 and 7 and confirmed under Section 20, which has been implemented under the provisions of Section 24 and no other lands; iii. the lands which have been contributed by the proprietors on the basis of pro rata cut on their holdings imposed during the consolidation proceedings and which have not been earmarked for any common purpose in the consolidation CWP No.14001 of 2011.doc - 6 – scheme prepared under Section 14 read with Rules 5 and 7 and entered in the column of ownership as Jumla Mustarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, shall not vest the Gram Panchayat or the State Government, as the case may be, on the dint of sub-section (6) of Section 2(g) and the explanation appended thereto or any other provisions of the Act of 1961 or the Act of 1948; iv. all such lands, which have been, as per the consolidation scheme, reserved for common purposes, whether utilized or not, shall vest with the State Government or the Gram Panchayat, as the case may be, even though in the column of ownership the entries may be Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat etc.” (Emphasis applied) (7). It is obvious that if the suit land was utilized, reserved or assigned for a ‘common purpose’, its ownership stands vested in the Gram Panchayat as a part of the shamlat deh. (8). The core issue to be resolved by the Collector was as to whether or not the suit land was reserved or ‘assigned’ for ‘common purposes’ in the Consolidation Scheme? The Collector in this regard has categorically held as follows:- CWP No.14001 of 2011.doc - 7 – “In this connection he invited my attention towards Khasra Girdawari Ex.P4 and copy of consolidation scheme Mark-A. The counsel for the respondent while replying has argued that as per consolidation scheme, Mark-A, disputed land is reserved for different common purposes. As per rules whatever land is reserved for common purposes at the time of consolidation that land vests in the Gram Panchayat.” xxxx xxxx xxxx xxxx “After hearing both the parties, I have reached at the conclusion that as per consolidation scheme the disputed land was reserved for different common purposes which comes in the definition of “shamlat deh” and vests in the Panchayat. Vide Full Bench decision of Hon’ble Punjab and Haryana High Court in the case of “Jai Singh vs. State” decided on 13.03.2003, the ownership of such reserved land vests in the Panchayat. In this manner, disputed land is covered under definition of “shamlat deh” under Section 2(g)(6) of the Punjab Village Shamlat Land Act, 1961 and vests in Panchayat. This land is not bachat land. In this manner, the plaintiffs CWP No.14001 of 2011.doc - 8 – have completely failed to prove this issue and Issue No.1 is decided against the plaintiffs and in favour of the defendant.” (Emphasis applied) (9). The above-reproduced finding has been affirmed by the Commissioner, Ambala Division, Ambala as well as by the Financial Commissioner. (10). The petitioner has nowhere disputed that the land in dispute was not ‘reserved’ or ‘assigned’ for ‘common purposes’ under the Consolidation Scheme. That being an admitted fact, the phrase ‘bachat land’ which is otherwise alien to the scheme of the Act, cannot be applied to the suit land. I say so for the reason that ‘common purposes’ cannot be in a static form and is rather a continuous process. For example, the total population of a village in 1960s might not require more than a Primary School but in 2010 that very village certainly requires a High or Senior Secondary School. There are several public utility services which were not readily available in last 4-5 decades due to meagre revenue but with an improved economy not only the inhabitants in rural areas deserve but the State or its CWP No.14001 of 2011.doc - 9 – hands like Gram Panchayats, are also obligated to provide those amenities. (11). The 73rd Amendment of the Constitution has portrayed the Gram Panchayats as the democratic form of governance at the grass-root level. The Eleventh Schedule (Article 243G) of the Constitution obligates Gram Panchayats to implement several social welfare schemes in the village for which the land and funds both are needed. If the misdirected notion of distribution of ‘bachat’ lands amongst the proprietors is accepted and the public assets are captived to fulfill individual’s greed, the Gram Panchayats will be left with no means to stand as the institutions of ‘self governance’. It cannot be overlooked that the village community is not comprising the ‘proprietors’ only. There are several landless communities who also live in that very village and are equally entitled to the amenities like school, hospital, water supply and above all a small house for shelter. (12). For the foregoing reasons, I do not find any ground to interfere with the impugned orders passed by the authorities below. (13). Dismissed. 04.08.2011 Vishal shonkar (S u r y a K a n t) Judge