CWP No.6089 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.6089 of 2005 Date of Order: 14.9.2010 Sukhraj Singh and others ....Petitioners Versus The Joint Development Commissioner (IRD),Punjab and others ......Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.R.D. Bawa, Advocates for the petitioners. Mr. C.S. Brar, DAG, Punjab, for respondents no.1 and 2. Mr. R.K.Garg, Advocate for respondent no.3. ..... RAJIVE BHALLA, J This order shall dispose of CWP Nos.6089 of 2005 and 6017 of 2005, as they involve adjudication of identical questions of law. For the sake of convenience, facts are being taken from CWP No.6089 of 2005. The petitioners pray for issuance of a writ in the nature of Certiorari for quashing the order dated 24.10.2002, passed by the Joint Development Commissioner, (IRD), Punjab, exercising the powers of the Commissioner under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act'). The Gram Panchayat of village Khukrain, Tehsil and Distt.Kapurthala, filed an application before the Collector, under Section 7 of the Act, praying for ejectment of petitioner no.1, on the plea that he is in unauthorised occupation of panchayat land.. The petitioner filed a reply that the land in dispute belongs to the proprietors and is, therefore, recorded as CWP No.6089 of 2005 2 “Shamilat Deh Makbuza Malkan”. It was further pleaded that as the petitioner is in legal possession, he is not an unauthorised occupant, of the land in dispute. After considering the pleadings and the evidence adduced, the Collector dismissed the application by holding that the land in dispute does not belong to the Gram Panchayat. Aggrieved by this order, the Gram Panchayat filed an appeal, which was dismissed on the ground of limitation on 22.9.1995. The Gram Panchayat filed CWP No.17204 of 1996, which was allowed on 19.2.1998. The delay was condoned and respondent no.1 was directed to decide the appeal on merits. Upon due consideration of the merits, respondent no.1 accepted the appeal, set aside the order passed by the Collector and held that the Gram Panchayat is the owner of the land in dispute and petitioners are in unauthorised possession of panchayat property. The petitioners filed CWP No.16987 of 2003, which was dismissed as withdrawn on 30.10.2003, with liberty to file a fresh petition by raising a specific plea that after Muslims migrated to Pakistan, the land was allotted to them and the land in dispute was created after applying a pro-rata cut on the land allotted to the petitioners. Counsel for the petitioners submits that the land was allotted to the petitioners, as it was left behind by Muslim migrants. During consolidation,the land in dispute was created by applying a pro-rata cut on the land allotted to the petitioners, but as the land was neither reserved nor used for common purposes, it is “bachat land” and, therefore, does not vest in the Gram Panchayat. It is further submitted that as the land is recorded, in the jamabandi, as “Shamilat Deh, Hasad Rasab Zair Khewat”, it belongs CWP No.6089 of 2005 3 to the proprietors. It is further argued that as the land was banjar kadim in the year 1950, it does not vest in the Gram Panchayat. It is also argued that item no.6 of the scheme of consolidation, records that there is no Shamilat Deh in the village, thus, establishing that this land was carved out from the holding of the petitioners and as it has not been put to any common use, it has to be divided amongst the proprietors. Counsel for the Gram Panchayat, on the other hand, submits that the petitioners have not produced any evidence to establish their status as proprietors much less proprietors in possession as per their shareholding. The petitioners have failed to adduce any evidence in support of their plea of allotment or of the plea that the land was created during consolidation by applying a pro-rata cut on their holdings. It is submitted by reference to Annexures P-1 and P-2, the jamabandis for the years 1979- 80 and 1999-2000 that the petitioners are recorded as unauthorised occupants in Column No.9 of these jamabandis. The land belonged to Muslims proprietors, who migrated to Pakistan. After partition and with the enactment of the “Shamilat Law” in 1954 and the “Act” in 1961, the land came to vest in the Gram Panchayat, as held by the Hon'ble Supreme Court in Gram Panchayat, Jamalpur Vs. Malvinder Singh,AIR 1985 SC 1394. It is also submitted that as the land is described as “Shamilat Deh”, it vests in the Gram Panchayat. I have heard counsel for the parties, perused the impugned order and find no reason to hold in favour of the petitioners. The jamabandis, Annexures P-1 and P-2 clearly record that the petitioners are in unauthorised occupation of the land in dispute. Apart from a faint agreement that the entry is incorrect, no explanation is forthcoming to rebut CWP No.6089 of 2005 4 the correctness of these entries. The positive stand taken by the petitioners, in their reply filed before the Collector, is that as the land in dispute was allotted to them, they are in legal possession. The petitioners have failed to produce any document or revenue entry evidencing such an allotment. Thus, as the very foundation of the petitioners claim remains unsubstantiated, the petitioners cannot be held to be unauthorised occupants of panchayat property. The plea that the land does not vest in the Gram Panchayat, as it belonged to Muslim proprietors, who migrated to Pakistan, must fail, as while considering a similar dispute, the Hon'ble Supreme Court has held in Gram Panchayat, Jamalpur Vs. Malvinder Singh (supra), that the share in Shamilat, left behind by Muslim proprietors, vests in a Gram Panchayat. An argument that the land in dispute was created by applying a pro-rata cut on land owned by the petitioners, remains unsubstantiated for want of any evidence or reference to any order, passed during consolidation proceedings recording such a fact. The extract from the Consolidation Scheme, does not advance the petitioners cause, as the petitioners have failed to refer to any order to establish that the land in dispute was created as per item no.6 of the consolidation scheme. The land in dispute is recorded as “Shamilat Deh” thereby clearly establishing that it vests in the Gramn Panchayat. The expression “Makbuza Malkan” refers to a state of ownership before the enactment of the “Shamilat Law” and the “1961 Act'. I, therefore, have no hesitation in holding that the land in dispute belongs to the Gram Panchayat and is in the unauthorised occupation of the petitioners. The petitioners appear to have succeeded in perpetuating their illegal possession for more than three decades. CWP No.6089 of 2005 5 In view of what has been stated herein above, the writ petition is dismissed, the order 24.10.2002, passed by the Joint Development Commissioner, (IRD),Punjab, is affirmed but with no order as to costs. 14.9.2010. ( RAJIVE BHALLA ) GS JUDGE