C.W.P. No. 3035 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 3035 of 2011 DATE OF DECISION: SEPTEMBER 26, 2011 Krishan Mohinder Singh and others .....PETITIONERS Versus State of Haryana and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE MOHINDER PAL Present: Mr. K.S. Sidhu, Sr. Advocate, with Mr. N.S. Sidhu, Advocate, for the petitioners. .. SATISH KUMAR MITTAL, J. The petitioners have filed the instant writ petition under Articles 226/227 of the Constitution of India for quashing of the order dated 2.1.2009 passed by the Sub Divisional Officer-cum-Assistant Collector Ist Grade, Panchkula, whereby the land in question was held to be Shamilat Deh and vests in Gram Panchayat; as well as the order dated 24.11.2009 passed by the Collector; and the order dated 25.5.2010 passed by the Commissioner, whereby the order of the Assistant Collector was affirmed. The dispute in this case is about the land measuring 156 Kanals 1 Marla situated in village Bhagwanpur. The Gram Panchayat moved an application before the Assistant Collector Ist Grade, Panchkula under C.W.P. No. 3035 of 2011 -2- Section 7(1) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act') for ejectment of the petitioners from the said land alleging that the same vests in the Gram Panchayat as the same was being used as `Charand' from the last so many years and the petitioners after taking benefit of the wrong entry in the column of possession, have illegally encroached upon the land and started cutting Kikkar trees from the disputed land. The petitioners filed reply to the said application and raised the question of title to the effect that the land in dispute does not fall under the definition of Shamilat Deh as the same was never used for any common purpose of the village and the proprietors of the village be declared owners of this land as this land was owned by their forefathers. Prima-facie finding that a question of title is involved, the Assistant Collector Ist Grade converted the eviction proceedings under Section 7(2) of the Act into a title suit under proviso to Section 7(2) of the Act and after framing the issues gave an opportunity to the petitioners to lead evidence to establish their title. The Assistant Collector Ist Grade vide order dated 22.4.2003 dismissed the claim of the petitioners on the ground that the Assistant Collector has no jurisdiction to decide the question of title raised in the ejectment application, but on appeal filed by the petitioners against that order, the said order was set aside by the Collector on 17.5.2005 while holding that even Assistant Collector Ist Grade has jurisdiction to decide the question of title under proviso to Section 7(2) of the Act, if such question is raised by the respondent in the proceedings under Section 7(2) before the Assistant Collector Ist Grade, and the matter was remanded. Thereupon, Assistant Collector Ist Grade considered the C.W.P. No. 3035 of 2011 -3- question of title after giving opportunity to the petitioners to present their case and lead evidence. Thereafter, the Assistant Collector Ist Grade, after taking into consideration the evidence led by both the parties, has held that the land in dispute is Shamilat Deh and the same was and is being used as `Charand' for common purposes for grazing cattle by the villagers and, thus, the land vests in the Gram Panchayat. The said order was upheld by the Collector and the Commissioner in appeal and revision. Hence, the petitioners have filed this writ petition. We have heard the learned counsel for the petitioners and gone through the impugned orders. As per the revenue record, which has been placed on record, the land in dispute is Pati Panna land owned by the proprietors and this land was used for grazing cattle by the villagers even much before coming into force of the Punjab Village Common Lands (Regulation) Act, 1961. This is admitted position as even witnesses produced by the private respondents have admitted this fact. It is further admitted position that in the year 1930 when the proprietors of this Pati land started restraining the non-proprietors of the village from grazing their cattle on the disputed land, a suit was filed by the non-proprietors restraining the proprietors from using the land for grazing of their cattle. Undisputedly, the said suit was decreed and the said decree was upheld by the Lahore High Court in RSA No. 1995 of 1930, and it was held that the petitioners' ancestors (proprietors) had no right to interfere for the use of land by the non-proprietors for grazing their cattle. It is also admitted position that even after coming into force of the first Act, viz. Punjab Village Common Lands (Regulation) Act, 1953 and Punjab Village Common Lands (Regulation) C.W.P. No. 3035 of 2011 -4- Amendment Act, 1964, the land is being used by the whole village for grazing of their cattle and even in the Jamabandi for the year 1971-72 the land has been shown as Banjar Qadim Charand. Thus, throughout in the revenue record under the column of ownership the name of the proprietors of the Patti is mentioned and the use of the land has been mentioned as `Charand' i.e. grazing ground for the cattle. It is true that prior to coming into force of the Punjab Village Common Lands (Regulations) Act, 1961, the land in dispute was owned by the proprietors, but the non-proprietors were using the said land for grazing of their cattle which is a common purpose. After coming into force of the 1961 Act, such land, which was carved out by the proprietors for common use, falls under the definition of Shamilat Deh and vests in the Gram Panchayat, therefore, the proprietors of the Patti cannot claim that this land is owned by them and it does not vest in the Gram Panchayat. Learned counsel for the petitioners has not disputed the aforesaid factual position and the finding recorded by the authorities below with regard to these facts. In view of the said finding, in our view, such land falls under the definition of Shamilat Deh under Section 2(g)(3) of the Act which provides that the `land described in the revenue records as shamilat, Tarafs, Pattis Pannas and Tholas and used according to revenue records for the benefit or the village community or a part thereof for common purposes of village'. Such land falls under the definition of Shamilat Deh, and according to Section 4(1)(a) such land vests in the Gram Panchayat. During the course of arguments, learned counsel for the petitioners could not controvert this factual and legal position and also C.W.P. No. 3035 of 2011 -5- could not point out any illegality or perversity in the impugned orders. Thus, we do not find any merit in this petition and the same is hereby dismissed. ( SATISH KUMAR MITTAL ) JUDGE September 26, 2011 ( MOHINDER PAL ) vkg JUDGE