Civil Writ Petition No.9020 of 2007 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.9020 of 2007 Date of Decision:- December 20, 2011 Gram Panchayat of village Bishangarh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present: Mr.Hardeep Singh, Advocate, for the petitioner. Mr. Manohar Lall, Addl. A.G., Punjab, for respondent No.1. Mr. Arun Jindal, Advocate, for respondents no.2 to 4. ... Satish Kumar Mittal, J. Gram Panchayat of village Bishangarh, Tehsil and District Patiala has filed the instant writ petition under Articles 226/227 of the Constitution of India for quashing the order dated 15.2.2007 (Annexure P2) passed by the Commissioner, whereby the appeal filed by respondents No.2 to 4 against the order dated 14.11.2005(Annexure P5) passed by the Collector, dismissing their title suit under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act'), was allowed and they were declared owners of the land in dispute. The brief facts of the case are that on 20.11.1981 the petitioner- Gram Panchayat filed an ejectment application before the Collector under Section 7 of the Act against respondent No.2-Sadhu Singh for his ejectment Civil Writ Petition No.9020 of 2007 -2- from the land in dispute. The Collector held that the land in dispute is Shamlat Patti Nungrahan and is being used as a Charand, a common purpose, therefore, this land comes under the definition of Shamilat Deh under Section 2(g) of the Act and vests in Gram Panchayat. It has been further held that the respondent neither produced any proof of his ownership nor produced any proof of his possession on the land in dispute before 26th January, 1950. Therefore, his possession on the land in dispute was held to be illegal and unauthorised. On coming to the said conclusion, the Collector allowed the application of the Gram Panchayat filed under Section 7 and ordered the eviction of respondent No.2 from the land in dispute vide order dated 27.1.1983 (Annexure P3). Feeling aggrieved against the aforesaid order, respondent No.2 filed an appeal before the Joint Director, Panchayat (Exercising the powers of Commissioner) and the same was dismissed vide order dated 17.2.1984 (Annexure P4). Later on, in the year 2003, respondents No.2 to 4 filed a title suit under Section 11 of the Act to declare them owners of the land in dispute. The Collector dismissed the suit vide order dated 14.11.2005 (Annexure P5), while making the following observations:- “After being perusal of the petition, reply, statements, evidence, arguments and record the court has come to the conclusion that the disputed land as per Khotani Pamaish is Makboozan Charand. The petitioners have failed to prove that they are in the possession prior to the year 26 January, 1950 and also they have not proved that they have separated their shares. Regarding these Khasra Numbers the Court Collector and Commissioner has already passed the orders of the Civil Writ Petition No.9020 of 2007 -3- dispossession against the petitioners. The Hon'ble Full Bench of the Hon'ble Punjab and Haryana High Court has already decided about the disputed land in a case titled as Jai Singh Versus State, stated that the land which is kept for the common purpose whether it is used or not, its rights is vest with Gram Panchayat. Whether the land is shown as Jumla Mustarka Malkan Wa Digar Haqdaran Hasad Rasad Arai Khewat, the disputed land is reserved for the common purpose and this land vest in the Gram Panchayat. So the petition of the petitioners is dismissed.” Feeling aggrieved against the afore-said order, respondents No.2 to 4 filed an appeal before the Commissioner, which was allowed by the impugned order dated 15.02.2007, and the respondents were declared owners of the land in dispute, while making the following observations:- “It is clear from the perusal of the record placed on the file and arguments of the ld. counsel that the land has remained in possession of the appellants and their predecessors. The entries in the Jamabandi for 1950-51 show that the land is under possession of Makbooza Malkan. There is no document to prove that the land was ever in the possession of the Gram Panchayat or was being used for any common purpose at any point of time. The names of Rakha and Bishna appeared in the cultivation column of the revenue record. The eviction order passed u/s 7 has no bearing on the decision of the case u/s 11. The ld. Collector has mentioned only Khatoni Pamaish to conclude that the land in dispute was reserved as Charand, but the Jamabandi prepared after Khatoni Pamaish shows Rakha and Bishna in possession of the land. In the absence of any evidence to prove the use of the suit land for the benefit of village community, it can not be said to be covered by the definition of Shamlat as given u/s 2(g). The order of the Civil Writ Petition No.9020 of 2007 -4- Collector has been passed without framing the issues and entire evidence brought on record has not been taken into account while passing the impugned order. In view of the continuous possession of the land by the appellants and their predecessor and as per the revenue record produced it is concluded that the suit land does not fall within the definition of Shamlat Deh and cannot be held to be vested in Gram Panchayat. The appeal is accepted. Impugned order of the Collector dated 14.11.2005 is set aside and the appellants are declared as owners of the land in dispute.” The aforesaid order has been challenged by the Gram Panchayat in the present writ petition. We have heard the learned counsel for the parties and gone through the impugned order as well as other documents annexed with the petition and also the written statement filed by respondents No.2 to 4. In the revenue record, i.e., Jamabandi for the year 1950-51, the land in dispute bearing Khatoni No.101, Khasra Nos.1,125 and 126 (Kitte 3) has been shown as Shamlat Patti in the column of cultivation being used as a Charand. Subsequently, in the Jamabandi for the year 1954-55, again the land bearing Khatoni No.101, Khasra Nos.1,125 and 126 (Kitte 3) was shown to be Shamlat Patti Nungren and was being used as a Charand. It has not been disputed that against those Khasra numbers the land in dispute measuring 44 Kanals 6 Marlas was allotted in the consolidation. In the consolidation proceedings, which were taken in the year 1956-57, as per Khatoni Pamaish, the land in dispute was reserved as Charand, but while preparing the Jamabandi for the year 1958-59, immediately after the consolidation, Rakha and Bishna were shown to be in possession of this Civil Writ Petition No.9020 of 2007 -5- land. The ownership entry remained the same, i.e. Shamlat Patti Nungren. By taking benefit of the said mistake in the Jamabandi, which may be as a result of fraud, respondents No.2 to 4 claimed that they were in possession of the land in dispute and contended that since the land in dispute is in their possession and is being not used for common purposes of the village, therefore, such Shamlat Patti land does not vest in the Gram Panchayat. The Collector, after taking into consideration all these factors and ignoring the entry in the column of subsequent Jamabandi, has rightly come to the conclusion that the land in dispute was of Shamlat Patti and was being used as a Charand, a common purpose of the village, therefore, in view of Section 2(g)(3) of the Act, such land vests in the Gram Panchayat. However, the learned Commissioner, after misreading the Jamabandi for the year 1950-51, has wrongly observed that in the said Jamabandi the land in dispute was recorded in possession of Makbooza Malkan. It has been observed that “there is no document to prove that the land was ever in the possession of the Gram Panchayat or was being used for common purpose at any point of time.” It has been further observed that the names of Rakha and Bishna appeared in the cultivation column of the revenue record, therefore, the Collector had committed illegality while dismissing the title suit of respondents No.2 to 4. In our view, the aforesaid observations made by the learned Commissioner are total contrary to the revenue record. In the Jamabandis for the years 1950-51 and 1954-55 the land in dispute has been described in column No.4 as Shamlat Patti Nungren and in the column of cultivation as Charand, and in column No.8 as Banjar Kadim. According to Section 2(g) Civil Writ Petition No.9020 of 2007 -6- (3) of the Act, such lands fall under the definition of Shamilat Deh. Section 2(g)(3) of the Act provides that “shamilat deh” includes 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. Even in the consolidation proceedings the nature of the land in dispute was described as a Charand. Merely because in the Jamabandi for the year 1958-59, the names of Rakha and Bishna came in the column of cultivation, does not mean that the land was never used for common purposes of the village. When the Shamlat law came into force i.e. 9.1.1954 (i.e. Punjab village Common Lands (Regulation) Act, 1953), the land in question was described as land of Shamlat Patti and is being used as a Charand. Such land, in view of Section 2(g)(3) of the Act, vests in the Gram Panchayat. A Full Bench of this Court in G.P.Sadharaur Versus Baldev Singh, 1977 PLJ 276 has held that all lands described as Shamlat. Tarafs, Pattis shown in the revenue records in the ownership of any Pattis and also recorded to be used for any common purpose of the village shall fall under the definition of Shamilat deh as defined under Section 2(g)(3) of the Act and vest in the Gram Panchayat, and not in the proprietors of the Shamlat Patti. Thus, the entire approach of the learned Commissioner in dealing with the issue is perverse and contrary to the factual position recorded in the revenue record. Therefore, in our view, the impugned order passed by the learned Commissioner is not sustainable being contrary to the factual and legal position as explained above. In view of the above, the petition is allowed and the impugned Civil Writ Petition No.9020 of 2007 -7- order dated 15.2.2007 (Annexure P2) passed by the Commissioner is hereby set aside and the order of the Collector dated 27.1.1983 (Annexure P3) is restored. (SATISH KUMAR MITTAL) JUDGE December 20, 2011 (MEHINDER SINGH SULLAR) vkg JUDGE