IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. NO. 132 OF 2009 in C.W.P. NO. 1225 OF 2009. Date of Decision : March 05, 2009. Gram Panchayat Mavi Kalan, Tehsil Samana, District Patiala. ...... Petitioner. Versus. Director Land Records, Punjab, Jalandhar, and others. ...... Respondents. CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. S.S. Salar, Advocate, for the appellant. Mr. Arun Jindal, Advocate, for the caveator-respondent. AUGUSTINE GEORGE MASIH, J. The present appeal has been filed under the Letter Patent Appeal Act, challenging the order of the learned Single Judge, dated 27.01.2009, vide which the writ petition preferred by the petitioner-Gram Panchayat has been dismissed on the ground that it does not have the locus to challenge the order passed in favour of the private respondent No.3-Labh Singh under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as “the Act”). The locus to challenge the order under Section 42 of the Act has been held to be not with the Gram Panchayat on the ground that it is not the owner of the land and the Gram Panchayat would not have any concern with the area which has been L.P.A. NO. 132 OF 2009. found to be deficient at the time when the consolidation proceedings were undertaken in the village. This land which has been now allotted to the private respondent No.3-Labh Singh has been allotted from the Jumla Mushtarka Malkan (common land) of which the Gram Panchayat is not the owner but is common pool belonging to the proprietors of the village. The challenge in the present appeal is by the Gram Panchayat on the ground that the deficiency which has been assessed in favour of the private respondent No. 3-Labh Singh is incorrect and the calculations made is not sustainable. It has been contended that the Gram Panchayat was claiming interest in the land in dispute as the management and control of the Jumla Mushtarka Malkan (common land) vests with the Gram Panchayat under Section 23-A of the Act. Once the land is under the control of the management of the Gram Panchayat then it has the locus to protect the land even if someone tries to take that land away from it being the custodian of the property. Delving upon this ground, counsel for the appellant has contended that initially an ex-parte order dated 11.08.1987 was obtained by the private respondent No. 3-Labh Singh in his favour. This order was challenged before this High Court by the proprietors of the village which came to be decided by this Court vide order dated 08.04.1991 (Annexure- P-3). The writ petition was allowed and the impugned order was quashed and the matter was remanded to the Director Consolidation of Holdings, Punjab, Chandigarh, to decide afresh the petition under Section 42 of the Act filed by the respondent No. 3-Labh Singh after hearing the petitioners and other affected persons, if any. The matter was, thereafter, decided by hearing all the affected parties and the Consolidation Officer found that -2- L.P.A. NO. 132 OF 2009. there was deficiency in measurement of certain khasra numbers and accordingly came to the conclusion that there was a deficiency of land as far as the claim of respondent No. 3-Labh Singh is concerned during the consolidation proceedings. This order is dated 27.05.1993. Against this order, a petition under Section 42 of the Act was filed by the Gram Panchayat which came to be dismissed on 04.11.1994 on the ground that it is barred by the time and the Gram Panchayat should have appeared before the authorities. Against this, the Gram Panchayat filed C.W.P. No. 14724 of 1995. This Court was pleased to quash the order and further issued a direction to the respondent No. 1 to decide the matter afresh after issuing notices to the concerned parties, vide order dated 27.11.1996. The Additional Director, Consolidation, thereafter, took up the matter and passed order dated 17.09.2008, holding therein that the Gram Panchayat had no locus standi to challenge any order as the area was Jumla Mushtarka Malkan (common land) which was the ownership of the proprietors and the same was accrued by imposing cut on the proprietors on pro rata basis and the Gram Panchayat was not the owner of the land and, thus, has no right . He further contends that once this Court has remanded the case back to the Director, Consolidation, to decide the matter afresh on a petition filed by the Gram Panchayat, the same could not have been rejected by the Additional Director, Consolidation, on the ground that the Gram Panchayat has no concern with this land. He on this basis further states that the order passed by the learned Single Judge also cannot be sustained as the Gram Panchayat is the custodian of the land and in possession thereof, therefore, entitled to maintain the writ petition challenging the impugned order dated 17.09.2008, passed by the Additional Director, Consolidation. -3- L.P.A. NO. 132 OF 2009. On the other hand, counsel on behalf of caveators-respondents has submitted that for challenging the order under Section 42 of Act, the right is only available to the proprietors of the Jumla Mushtarka Malkan (common land). It is an admitted position that the land is not in the ownership of the Gram Panchayat. The land is common land which has been created by imposing pro rata cut on the share of the holdings of the proprietors of the village. It would, therefore, be the proprietors of the village who would have the locus to challenge this order as they would have a right to ownership over the land in question. The right, therefore, in the common land would be of the holders who are the proprietors of the village. Since none of the proprietors of the village has any objection as none has challenged this order, no fault can be found with the order passed by the Additional Director, Consolidation, dated 17.09.2008 as well as in the judgment passed by the learned Single Judge, dated 27.01.2009. We have heard counsel for the parties and have gone through the records of the case. During the consolidation proceedings pro rata cut was imposed on the proprietors of the village which came to be called as Jumla Mushtarka Malkan (common land) and it vested with all the proprietors of the village. They have joint ownership over this land but as per their respective shares at the time of consolidation and the pro rata cut imposed on their land under the Act. Application under Section 42 of the Act can be filed by such proprietor where he alleges that the land which he was entitled to or the land which has been allotted to him, does not on the ground measure the same as per the allotment meaning thereby that there is deficiency in the area of the land. In the present case, a petition under Section 42 of the Act was filed by Shri Labh Singh contending therein -4- L.P.A. NO. 132 OF 2009. that there is a shortfall in his allotted area. On checking, at the spot by the authorities under the Act, it was found that the assertion made by Shri Labh Singh was correct and his land was indeed deficient to the area allotted to him. On this basis, he was allotted the land which shortfall was found by the competent authority under the Act. This area was allotted from the Jumla Mushtarka Malkan (common land) which is the joint ownership of the proprietors of the village and has been created by imposing pro rata cut on the land of the proprietors. That being so, the Gram Panchayat merely because it is managing the property does not have the right to maintain a petition challenging the shortfall which has been found by the competent authority with regard to the allotted area to Shri Labh Singh. In view of the above, we do not find any merit in the present appeal preferred by the Gram Panchayat, challenging the order dated 27.01.2009, passed by the learned Single Judge, and therefore, dismiss the same. (ASHUTOSH MOHUNTA) (AUGUSTINE GEORGE MASIH) JUDGE JUDGE March 05,2009. sjks. -5-