IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.11213 of 2009 Date of decision: 29.7.2009 Rajinder Singh and Others …. Petitioners Versus Director, Rural Development and Panchayat Department, Punjab, Chandigarh and Others …. Respondents Present : Mr. H.S. Dhandi, Advocate for the petitioners. *** S.S. SARON, J. The petitioners by way of the present petition under Articles 226/227 of the Constitution of India seek quashing of the order dated 18.3.2009 (Annexure P12) passed by the Commissioner-Cum-Director, Rural Development and Panchayat Department (respondent No.1) and the order dated 27.10.2006 (Annexure P10) passed by the Collector-cum-Sub Divisional Magistrate, Ludhiana (East) (respondent No.2) alleging the same to be against the provisions of the Punjab Village Common Lands (Regulation) Act, 1961 (‘1961 Act’ – for short) and the Punjab Package Deal Property (Disposal) Act, 1976 (‘1976 Act’ – for short) as also against the provisions of the Constitution of India. The case of the petitioners is that the entire population of village Rajewal Rajputan were Mohammedans and they migrated to Pakistan at the CWP No.11213 of 2009 [2] time of partition of the country. Land measuring 1189 bighas, 17 biswas, 5 biswasis was left behind in the village. Out of the said land 444 bighas 12 biswas 9 biswasis was under the river bed and the remaining land measuring 745 bighas 4 biswas 16 biswasis was ‘gair marusi’. Out of the land that was ‘gair marusi’; 374 bighas, 16 biswas and 14 biswasis was ‘banjar qadim’ land and land measuring 335 bighas, 15 biswas, 14 biswasis was ‘doem’. The land under the river bed was either ‘bet burdi’ or ‘doem’. It is submitted that the entire land was taken over by the Central Government after the migration of Muslims of village Rajewal Rajputan. Since most of the land was under river action, it is submitted that the revenue officials in the column of ownership just mentioned the land as ‘shamlat deh’ i.e. village common land. It is submitted that at the time of partition of the country there was no panchayat in existence. Out of the above mentioned land it has been alleged that some land was allotted to displaced persons and some land remained as it is. After sometime this land was transferred to the Custodian Department vide various notifications dated 23.3.1963, 3.6.1961 and 29.3.1963. The property became evacuee property and the Punjab government declared it as evacuee property under the 1976 Act. The department dealing with the evacuee property transferred number of such properties in accordance with their policies to various of persons. Virsa Singh, Charan Singh and Karam Singh sons of Bhal Singh etc. were allotted land by the Tehsildar (Sales), Samrala (respondent No.5) under the 1976 Act. Mutation No.361 dated 8.6.1976 (Annexure P1) was sanctioned in favour of aforesaid Virsa Singh, Charan Singh and Karan Singh sons of Bhal Singh. Similarly mutation No.369 dated 30.8.1977 (Annexure P2) was sanctioned in favour of Bachan Singh son of Lal Singh on the basis of sale made by Tehsildar (Sales), Samrala (respondent No.5). A reference is made to the Jamabandi for the CWP No.11213 of 2009 [3] year 1971-72 (Annexure P3) in terms of which it is stated that it has been mentioned that the land of all the residents of the village which is under the river bed has been mentioned in the column of ownership as ‘shamlat deh’ but in the column of cultivation it has been mentioned as ‘makbooza custodian’. The Consolidation Department also, it is stated, allotted land to Sohan Singh son of Karnail Singh resident of village Rajewal Rajputan even though entry in the ownership column is ‘shamlat deh’. Land was allotted to Jawala Singh son of Pritam Singh and mutation dated 30.3.1964 (Annexure P4) was entered in this regard. The names of other persons who have been similarly allotted land are mentioned. It is submitted that Prem Singh father of the petitioners was in possession of the land measuring 68 kanals 18 marlas which is in dispute from the day the Muslims of the village migrated to Pakistan. Entries in the revenue record in this regard are available from the Year 1975 onwards. Prem Singh father of the petitioners filed an application before the Tehsildar (Sales), Samrala (respondent No.5) for allotment of the said land in his possession. In support of his claim, Jamabandi for the year 1997-98 (Annexure P5) was submitted. It was claimed that the possession of the father of the petitioners is since 1975 as per the revenue records. The Tehsildar (Sales), Samrala (respondent No.5) asked for a report from the Patwari who submitted the same on 8.7.2003 (Annexure P6). The Sub- Divisional Magistrate, Samrala wrote a letter dated 15.7.2003 (Annexure P7) to the Deputy Commissioner, Ludhiana for issuance of necessary directions regarding transfer of the land in the name of Prem Singh, father of the petitioners, on the basis of his possession. The Tehsildar (Sales), Samrala (respondent No.5) it is alleged without any basis asked the petitioners’ father namely Prem Singh that since in the column of ownership ‘shamlat deh’ was CWP No.11213 of 2009 [4] mentioned so he should move an application for correction of that entry so that the land measuring 68 kanals 10 marlas can be sold to him under the provisions of the 1976 Act. Prem Singh, the father of the petitioners submitted a petition (Annexure P8) under Section 11 of the 1961 Act before the Additional Deputy Commissioner (Development), Ludhiana (exercising the powers of Collector under the 1961 Act) for correction of the entry. It is submitted that a report was called for from the Kanungo. Gulzar Singh, who was working as Kanungo at that time prepared the report. He, however, demanded a huge amount from Prem Singh for submitting the report. The amount could not be arranged by Prem Singh, father of the petitioners, so the said Kanungo threw away the unsigned report (Annexure P9) prepared by him. The unsigned report (Annexure P9) was collected by the petitioners. As per the said report, it is submitted that the land in question does not vest in the ‘shamlat deh’ and it is the property of the Custodian Department. Due to river action ‘shamlat deh’ has been mentioned in the revenue record as the entire village falls within the river bed. So entries were mentioned as ‘shamlat deh’ as the land was of ‘burji baramadgi’. The Tehsildar (Sales), Samrala (respondent No.5) due to non-submission of the report by the aforesaid Kanungo in connivance with each other filed reply to the petition (Annexure P8) under Section 11 of the 1961 Act that the land belongs to ‘shamlat deh’. This stand has also been taken by the Gram Panchayat village Rajewal Rajputan (respondent No.3) and the Tehsildar (Sales), Samrala (respondent No.5) in their replies before the learned Courts below. The same in fact is without any basis and evidence and without going through the revenue records in respect of the land in question. The replies were filed only to deny the claim of Prem Singh as he did not fulfil the illegal demands as raised by the kanungo. The Collector, Ludhiana (respondent No.2) passed CWP No.11213 of 2009 [5] the impugned order dated 27.10.2006 (Annexure P10) whereby the petition (Annexure P8) of the petitioners was dismissed. The petitioners aggrieved against the same filed an appeal (Annexure P11) before the Commissioner under the 1961 Act which was dismissed vide impugned order dated 18.3.2009 (Annexure P12). The same are assailed in this petition. Learned counsel for the petitioner has contended that the entire land of village Rajewal Rajputan (respondent No.3) is ‘burji baramadgi’ and none of the residents has been shown as owner of the land. In the column of ownership under the rule of ‘burji baramadgi’ name of ‘shamlat deh’ has been mentioned as owner whereas the land in dispute does not at all belong to the Gram Panchayat. It is submitted that the authorities under the 1961 Act have not considered the factual position involved in the case and have decided the case without going into the actul position on record. In fact the land in question and other lands of village Rajewal Rajputan (respondent No.3) is the ownership of the Punjab Government and falls within the definition of evacuee land but since there was the flow of river through this land, the land of the entire village due to action of ‘burji baramadgi’ in the column of ownership is recorded as ‘shamlat deh’. The land in question in fact vests in the Punjab Government and the Punjab Government has sold part of the land under the 1976 Act through Tehsildar (Sales), Samrala (respondent No.5) in respect of which mutations have also been sanctioned which is evident from the revenue records (Annexures P1 to P4). The land in possession of the petitioners, it is submitted, is identical to the land sold by Tehsildar (Sales), Samrala (respondent No.5) to different persons of the village under various schemes issued by the Punjab Government under the 1976 Act. The petitioners’ father also got some identical land vide mutation No.334 as has been mentioned by the Patwari in his report dated 8.7.2003. The land CWP No.11213 of 2009 [6] regarding which the petitioners’ father moved an application, it is submitted, also falls under the evacuee land and the same is liable to be allotted to the petitioners on the basis of their possession after payment of some amount as settled by the Punjab Government. The land in question it is submitted does not at all fall within the definition of ‘shamlat deh’. The case of the petitioners is that they are entitled to land measuring 68 kanals 18 marlas of village Rajewal Rajputan. The petitioners claim that they are in possession of the same since 1947 after partition of the country and the migration of the Muslim population of the village to Pakistan. It may, however, be noticed that admittedly the land of which right to allotment is claimed is recorded in the revenue records as ‘shamlat deh’. Section 2 (g) of the 1961 Act defines ‘shamlat deh’ as follows:- “Shamilat deh” includes :- (1) lands described in the revenue records as shamlat deh excluding abadi deh; (2) shamlat tikkas; (3) lands described in the revenue records as shamlat 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; (4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds within abadi deh or gorah deh; and CWP No.11213 of 2009 [7] (5) lands in any village described as banjar qadim and used for common purposes of the village, according to revenue records; but does not include land which --- (i) ------- (ii) has been allotted on quasi-permanent basis to a displaced person; (ii-a) was shamlat deh, but has been allotted on quasi-permanent basis to a displaced person, or has been otherwise transferred to any person by sale or by ay other manner whatsoever after the commencement of this Act, but on or before the 9th day of July, 1985; (iii) has been partitioned and brought under cultivation by individual landholders before the 26th January, 1950; (iv) having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the shamlat deh and is so recording in the jamabandi or is supported by a valid deed; (and is not in excess of the share of the co-sharer in the shamlat deh) CWP No.11213 of 2009 [8] (v) is described in the revenue records as shamlat, taraf, pattis, pannas, and thola and not used; according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (vi) lies outside the abadi deh and was being used as gitwar, bara, manure pit, house or for cottage industry, immediately before the commencement of this Act. (vii) -----. (viii) was shamlat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamlat deh on or before the 26th January, 1950; or (ix) was being used as a place of worship or for purposes, subservient thereto; immediately before the commencement of this Act; “Shamilat law” has been defined in Section 2 (h) of the 1961 Act as follows:- (h) “Shamilat law” means – (i) in relation to land situated in the territory which immediately before CWP No.11213 of 2009 [9] the Ist November, 1956, was comprised in State of Punjab, the Punjab Village Common Lands (Regulation) Act, 1953 or (ii) in relation to land situated in territory which immediately before the Ist November, 1956, was comprised in State of Patiala and East Punjab States Union; the Pepsu Village Common Lands (Regulation) Act, 1954; A perusal of the above shows that ‘shamlat deh’ land in terms of Section 2(g) of the 1961 Act includes land described in the revenue records as ‘shamlat deh’ but excluding ‘abadi deh’. Therefore, if the land in the revenue records is described or mentioned as ‘shamlat deh’ it is shamlat deh. Land which is shamlat deh vests in the Panchayat in terms of Section 4 of the 1961 Act. Section 4 provides for vesting of rights in Panchayat and non- proprietors. It is provided therein that notwithstanding anything to the contrary contained in any other law for the time being in force or any agreement, instrument, custom or usage or any decree or order of any Court or other authority, all rights, title and interest whatever in the land which is included in the shamlat deh of any village and which has not vested in a Panchayat under the shamlat law shall at the commencement of the 1961 Act vest in the Panchayat constituted for such village and where no such Panchayat has been constituted for such village, vest in the Panchayat on such date as the Panchayat having jurisdiction over that village is constituted. Therefore, the contention of the learned counsel for the petitioners that the CWP No.11213 of 2009 [10] land does not at all vest in the Panchayat is devoid of any merit as land which is mentioned in the revenue records as ‘shamlat deh’ is shamlat deh in terms of Section 2(g) of the 1961 Act and such land vests in the Panchayat in terms of Section 4 thereof. The question whether such land which is recorded as shamlat deh vests with the Gram Panchayats or whether the Rehabilitation Department of the Central Government has a right to allot lands of that description, to the extent of the evacuee interest therein to persons who migrated from Pakistan to India after the partition of the country is not res integra. The Supreme Court in Jamalpur Gram Panchayat v. Malwinder Singh and Others, AIR 1985 SC 1394 (Five Judges) has considered the said controversy between the rights of the Gram Panchayats to the shamlat deh lands and the right of the Rehabilitation Department of the Central Government to allot lands of that description to the extent of the evacuee interest therein, to persons who migrated from Pakistan to India after the partition of the country. It was contended by the Central Government and also by persons to whom shamlat deh land had been allotted by the Rehabilitation Department that the interest in such lands of the Muslims who migrated to Pakistan is evacuee property which the Central Government has the right to allot under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The contention of the Punjab Government and the Gram Panchayats in Punjab and Haryana was that by reason of the provisions of the Punjab Village Common Lands (Regulation) Act, 1953, the interests of all persons, whether Hindus, Sikhs or Muslims in the ‘shamlat deh’ lands stood extinguished and those lands were placed by the said 1953 Act under the control and power of the respective Gram Panchayats. The Punjab Village Common Lands (Regulation) Act, 1953 has CWP No.11213 of 2009 [11] since been repealed and at present the 1961 Act is applicable. The ‘shamlat deh’ lands have always been intended for common use of all the share- holders of the land in the village. Some villages in Punjab were prior to the partition of the country inhabited mostly by Muslims. Therefore, the entire land of such villages were owned by Muslim proprietors. The said proprietors had a proportionate undivided share in the shamlat deh lands as per the revenue records of the village. The ‘shamlat deh’ land, however, was not liable to be partitioned nor could it be alienated. Such lands were used for common purposes of the village. The migration of Muslims led to vesting of the lands of the Muslims in the Central Government which were allotted as per government policies including allotment of lands to those migrants who had come from Pakistan to India. The question as regards the undivided share in the ‘shamlat deh’ land in the case of Jamalpur Gram Panchayat v. Malwinder Singh (Supra) it was held would vest in the Gram Panchayat. The pith and substance of the Punjab Village Common Lands (Regulation) Act, 1953 it was held was that such land falls under Entry No.18 of List-II (State List) of the Seventh Schedule to the Constitution of India. The said Entry No.18 relates to land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. It was held that the power of the State Legislature to pass laws on matters enumerated in the State List is exclusive by reason of the provision contained in Article 246 (3) of the Constitution. In a nutshell, the position it was held is that the Parliament had passed a law i.e. the Administration of Evacuee Property Act, 1950, on a matter which falls under Entry 41 of the Concurrent List, while the State Legislature had passed a law which fell under Entry No.18 of the State List. It was held that the law CWP No.11213 of 2009 [12] passed by the State Legislature, being a measure of agrarian reform, is conducive to the welfare of the community and there is no reason why that law should not have effect in its full amplitude. By the said process, the village Panchayats would be able to meet the need of the village and secure its welfare. Accordingly, the Punjab Act i.e. the Punjab Village Common Lands (Regulation) Act, 1953 it was held would prevail in the State of Punjab over the Central Act i.e. the Administration of Evacuee Property Act, 1950 even insofar as ‘shamlat deh’ lands were concerned. Therefore, Punjab Act having prevailed over the Central Act, the ‘shamlat deh’ lands for all intents and purposes came to vest in the village Panchayats of the respective villages. The judgement in Jamalpur Gram Panchayat v. Malwinder Singh (Supra) was pronounced on 9.7.1985. The State Legislature, with a view to protect the allottees of the lands who had already been allotted ‘shamlat deh’ lands, excluded those lands which had been allotted before the date of the judgment of the Supreme Court on 9.7.1985. Section 2(g) of the 1961 Act which defines ‘shamlat deh’ has been extracted above. The said Section 2(g) is in two parts. Clauses (1) to (5) relate to lands which are included in the definition of ‘shamlat deh’. Clauses (ii) to (ix) are those which are not included in ‘shamlat deh’. In view of the judgment in Jamalpur Gram Panchayat v. Malwinder Singh (Supra), clause (ii-a) was added to the exclusionary clauses vide the Punjab Village Common Lands (Regulation) Amendment Act, 1995 (Punjab Act No.8 of 1995). Amongst the land which does not fall within the definition of ‘shamlat deh’, it is mentioned in clause (ii) regarding such land that has been allotted on quasi-permanent basis to a displaced person. Besides, in terms of Clause (ii-a) that was added by the Punjab Village Common Lands (Regulation) Amendment Act, 1995 (Punjab Act No.8 of 1995) such land which was shamlat deh, but has been allotted on CWP No.11213 of 2009 [13] quasi-permanent basis to a displaced person, or has been otherwise transferred to any person by sale or by any other manner whatsoever after the commencement of the 1961 Act, but on or before 9.7.1985. In other words land which was allotted to a displaced person or was otherwise transferred was also not included in the definition of ‘shamlat deh’. Therefore, shamlat deh land which had been allotted or transferred to any person by sale or other manner after the commencement of the 1961 Act which commenced on 4.5.1961 i.e. date of publication in the Punjab Government Gazette (Extra- ordinary) but before 9.7.1985 i.e. the judgment in Jamalpur Gram Panchayat v. Malwinder Singh (Supra), was protected. Such ‘shamlat deh’ lands which had been allotted by the Rehabilitation Department under its policies between the commencement of the 1961 Act, which commenced on 4.5.1961 and the date of judgment of the Supreme Court on 9.7.1985 were to vest in the allottees of the lands and not in the Gram Panchayats of the village. Therefore, the petitioner in order to establish his claim to the land measuring 68 kanals 4 marlas which admittedly is recorded as ‘shamlat deh’ in the revenue records is to show that the same was allotted to them or their predecessor in interest on quasi-permanent basis or has been otherwise transferred to them or their predecessor in interest by sale or by any other manner after 4.5.1961 but on or before 9.7.1985. The petitioners admittedly are not displaced persons from Pakistan and therefore, the question of allotment on quasi-permanent basis in their favour does not arise. Besides, there is no transfer by sale or by any other means in their favour during the period from 4.5.1961 till 9.7.1985. Therefore, the petitioners have no right to the said land measuring 68 kanals 18 marlas. The allotments vide mutations Annexures P1 to P4 show that those were made vide sale certificates during the period of 4.5.1961 and CWP No.11213 of 2009 [14] 9.7.1985. The petitioners do not have any allotment by sale or by any other means in their favour during the said period. In the Jamabandi for the year 1997-98 (Annexure P5) in respect of land measuring 68 kanals 10 marlas, the ownership of shamlat deh makbuja is recorded. The kind of land except for 1 kanal 10 marlas i.e. for the remaining 67 kanals is mentioned as ‘bet chahi’ and 1 kanals 10 marlas is mentioned as ‘gair mumkin’. Prem Singh, the predecessor-in-interest of the petitioners in respect of the land in the column of cultivation is only recorded in possession. The other contention of the petitioners that the land is ‘burji baramadgi’ and falls in the river bed and therefore, is not ‘shamlat deh’ is also devoid of any merit. Section 2(g) of the 1961 Act as has already been noticed, is in two parts. The first part from clauses (1) to (5) relates to those land which fall in the definition of ‘shamlat deh’ and the second part from clauses (ii) to (ix) relates to land which are not included in ‘shamlat deh’ or in other words are excluded. Clause (i) of the 1961 Act which was part of the lands that are excluded from the definition of ‘shamlat deh’ has since been omitted. The same related to land which becomes or had become ‘shamlat deh’ due to river action or had been reserved as shamlat in villages subject to river action except ‘shamlat deh’ entered as pasture, pond or playground in the revenue records. The said clause (i) of Section 2(g) from amongst the exclusionary clauses was omitted by Section (2)(3)(b) of the Punjab Village Common Lands (Regulation) Amendment