CWP No.2123 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.2123 of 2009 Date of decision: 09.08.2011 Mangli and others ....Petitioners Versus The Financial Commissioner and Principal Secretary to Government of Haryana, Development and Panchayats Department and others ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Mahavir Sandhu, Advocate, for the petitioners. Mr. Gaurav Dhir, DAG, Haryana. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Petitioners have invoked jurisdiction of this Court under Article 226/227 of the Constitution of India assailing the order dated 29.3.2007 (Annexure P-3) passed by Collector, Sonepat, order dated 5.9.2008 (Annexure P-4) passed by Commissioner, Rohtak Division, and order dated 10.12.2008 (Annexure P-5) passed by Financial Commissioner, whereby suit filed by Gram Panchayat/respondent No.4 herein under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 as applicable to State of Haryana (hereinafter called as 'the 1961 Act') was decreed and appeals and revision arising therefrom were dismissed. The Gram Panchayat has filed suit under Section 13-A inter alia contending that land in dispute during the consolidation of holdings CWP No.2123 of 2009 -2- was reserved for the purpose of Charand and since then same is continued for the common purpose of Charand; mutation sanctioned in favour of 'Panna Kalian' pursuant to the judgment of Full Bench in the case of Jai Singh Vs. State of Haryana dated 18.1.1995 is of no value after setting aside of the order and judgment dated 18.1.1995 by the Hon'ble Apex Court vide order dated 6.8.1998 and thereafter after the decision of the Full Bench of this Court dated 13.3.2003. Petitioners herein preferred their written statement contending mutation sanctioned in favour of the petitioners herein vide order dated 16.5.1997 pursuant to Full Bench decision dated 18.1.1995 was never disturbed/revoked even after the remand of the case by Hon'ble Apex Court and fresh decision of the Full Bench of this Court dated 13.3.2003, therefore, Gram Panchayat is estopped to challenge the title of the petitioners herein; further contention is that seldom use for the purpose of Charand does not change the nature of the suit land; further contended that right from the very beginning petitioners are in possession and cultivation of the suit land and are the owners thereof. Learned trial Court/Collector has framed as many as six issues and after discussing entire material/evidence, made available on the record, has decreed the suit of the Gram Panchayat vide judgment and order dated 29.3.2007 having observed that as per the copy of 'Sharat Wajib Ul Arj' and in the consolidation proceedings land was kept reserved for the purpose of Charand, therefore, as per Section 2(g)(i) & (iii), land in question is a 'Shamlat Deh' and has stood vested in the Panchayat in view of Section 4(i) of the 1961 Act. Feeling aggrieved, petitioners preferred an appeal before the Divisional Commissioner, CWP No.2123 of 2009 -3- which was dismissed vide judgment and order dated 5.9.2008 and thereafter revision preferred was also came to be dismissed vide judgment and order dated 10.12.2008. Feeling aggrieved, petitioners have approached this Court. I have heard learned counsel for the parties and have carefully perused the record. Undisputedly, land in question was recorded as 'Shamlat Panna Kalian Bai Hissa Jail Dar Eighty Shares Chuhar Singh etc. Khewat No.1 shareholders' and in the column of cultivation 'Khudkast and Maqbooja Malkan' is recorded; in the column of area and nature, land in question is described as 'Banjar Qadim Charand & Chahi & Rosli'. Assistant Collector, IInd Grade, sanctioned mutation No.1736 dated 16.7.1991 in favour of the Gram Panchayat of the land in question; State of Haryana has amended the provisions of 1961 Act vide Haryana Act No.9 of 1992 adding sub-section (6) and explanation thereto thereby making provision that land entered in the column of ownership of record of rights as 'Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad, 'Jumla Malkan' or 'Mushtarka Malkan' shall be Shamlat deh within the meaning of this Section; amended Act No.9 of 1992 was challenged in several writ petitions before this Court; case of Jai Singh and others Vs. State of Haryana was made leading case and writ petitions were allowed by Full Bench of this Court vide a detailed judgment dated 18.1.1995 declaring Sections 2 and 5 of Haryana Act No.9 of 1992 ultra vires; after the judgment dated 18.1.1995 in the case of Jai Singh (supra) mutation No.1736 in favour of Gram Panchayat was set aside and mutation No.1793 dated 16.5.1997 was sanctioned in favour of 'Panna Kalian' CWP No.2123 of 2009 -4- from that of Gram Panchayat; meanwhile State of Haryana challenged the judgment dated 18.1.1995 before the Hon'ble Apex Court; Hon'ble Apex Court vide judgment dated 6.8.1998 set aside the judgment dated 18.1.1995 and has remanded the matter to this Court, however, mutation changed from that of Gram Panchayat in favour of 'Panna Kalian' in compliance of earlier decision of the Full Bench dated 18.1.1995 was not changed even after final judgment of this Court on 13.3.2003 in the case of Jai Singh (supra) There is no dispute that prior to the enforcement of Punjab Village Common Lands (Regulation) Act, 1953 and 1961 Act, land in question was recorded as 'Shamlat Panna Kalian' in equal 80 shares and in the column of cultivation entry of 'Khudkast and Maqbooja Malkan' was available and land in question was shown as 'Banjar Qadim, Charand Chahi and Barani'. There is also no dispute that as per the Sharat Wajib Ul Arj' land in question has been shown to be earmarked for the purpose of Charand. There is also no dispute that during the consolidation operation entries were made as under: - Sr. No. Name of common purpose Khasra Number Area 1 & 2 XX XX XX 3. Pond 73 to 76 14-5 4. Cremation ground 57/10 01/12/05 5. Panchayat Deh 9/7, 8/1, 17/2, 14 to 17, 24, 25, 30//4, 5, 6/1, 37/12/2, 13, 14, 17 to 19, 22, 23, 24, 60/2 to 4,9. 160-3 CWP No.2123 of 2009 -5- Sr. No. Name of common purpose Khasra Number Area 6. Manure pit 23/21/2, 6, 53/6, 15 4-16 5-18 7. Hadda Rodi 56/11/2 0-10 8. School and Playground 23/1, 2 09/18/05 9. Kumhardana 18/23 02/19/05 10. Dana Jaat 93 to 108 49-18 11. Drain 78-79 07/06/05 12. Charand For this purpose more area is available and falls in two Pannas. The same would be kept intact in its form and shape in Killa numbers. 13. XX XX XX Now question before me is as to whether entry of 'Sharat Wajib Ul Arj', wherein land has been shown to be earmarked and reserved for the purpose of Charand, can be relied upon to say land is reserved for Charand i.e. common purpose for the benefit of the village community? Learned Single Judge of this Court in the case of Rattan Singh and another Vs. The Commissioner, Ambala Division and others, 1993 PLJ 667 in paragraphs No.8, 9 and10 has held as under: - CWP No.2123 of 2009 -6- “8. It has been held in Jati and others v. Gram Panchayat Bichhpari, 1979 PLJ 595, that Sharat Wajib-ul-arz is a part of record of rights and a presumption of truth is attached to it under Section 44 of the Punjab Land Revenue Act and even if the entries in the Wajib-ul-arz are not repeated in the later Settlement, its evidentiary value remains the same. A reading of the entry in the Wajib-ul-arz reproduced above in the context of this case clearly shows that the land in dispute which was recorded as Banjar Qadim Makbuza Malkan, was being used by the village community for common purpose i.e. for grazing the cattle. The cattle of the proprietors and the non-proprietors had thus a right to graze in the land. User of land for common purposes, though not recorded in the Jamabandi for the year 1953-54, yet the entry in the Wajib-ul-arz would continue to show that the land was being used for common purposes of the village unless this entry was later altered. It was so done somewhere in the year 1963, but that would not make any difference, the relevant date being January 9, 1954. The land thus in my view has rightly been held to fall in the definition of Shamilat deh. 9. In Gram Panchayat Sadhraur's case (supra), the provisions of Section 2(g)(3) of the Act fell for consideration. It was held therein that the interpretation placed on sub-clause (3) of clause (g) of Section 2 of the Act given in Co-operative Society of Improvement of Shamilat Patti Harnam Singh Lambardar of village Khanni v. Gram Panchayat Khanni, 1962 PLR 730 cannot bear scrutiny and does not lay down a correct law. It was further observed that the expression “benefit of the village community or a part thereof” cannot be given by any stretch of imagination any restricted meaning so as to confine the benefit to only the owners of the land. In the present case, the entry reproduced above clearly shows that the benefit was not confined to the owners of the land only. The non-proprietors had also a right to graze their cattle. 10. In Des Raj's case (supra), it had not been specifically proved by leading evidence that the land described as Makbuja Malkan was used according to the revenue record for the benefit of the village community or for common purposes of the village. Such being the position, it renders no help to the petitioners.” As per the ratio in the case of Rattan Singh (supra), it can CWP No.2123 of 2009 -7- safely be said entries in the Wajib Ul Arj can be relied upon and presumed to be correct under Section 44 of the Punjab Land Revenue Act since Wajib Ul Arj is revenue record. Further it can also be said that the expression “benefit of the village community or a part thereof” cannot be given by any stretch of imagination any restricted meaning so as to confine the benefit to only the owners of the land. Learned counsel for the petitioners have vehemently argued that since mutation No.1793 dated 16.5.1997 pursuant to the Full Bench judgment dated 18.1.1995 in favour of 'Panna Kalian' from that of Gram Panchayat was not challenged within the reasonable time, therefore, Gram Panchayat cannot be permitted to assail the same by way of suit under Section 13-A, which was filed in the year 2004 after almost seven years from the date of mutation. Full Bench of this Court in the case of Jai Singh and others Vs. State of Haryana, 2003(1) PLJ 429 in paragraph No.67 has held as under: - “........Resultantly, if the mutations might have come into being on the dint of Act No.9 of 1992 challenged herein in favour of the State or Gram Panchayat, the said mutations shall stand cancelled or set aside, leaving open for the Gram Panchayat to file an application for eviction under Section 7 or title suit under Section 13-A, as the case may be, if the lands are such which have since been earmarked for common purposes under the scheme and the proprietors are in unauthorised occupation and, the proprietors to file a title suit in case the lands are such which form part of Bachat land, having not been earmarked for any common purpose in the scheme of consolidation and yet the Gram Panchayat is asserting its title or is in possession thereof.” In the opinion of this Court, since mutation dated 16.5.1997 was made pursuant to the judgment passed by Full Bench of this Court CWP No.2123 of 2009 -8- dated 18.1.1995 and judgment of Full Bench dated 18.1.1995 was set aside by Hon'ble Apex Court on 6.8.1998 and thereafter Full Bench of this Court decided the matter on 13.3.2003, therefore, petitioners cannot take benefit of mutation dated 16.5.1997, which would be deemed having been set aside the moment Full Bench judgment of this Court dated 18.1.1995 was set aside by Hon'ble Apex Court vide order dated 6.8.1998. Moreover, Gram Panchayat has filed suit under Section 13-A in the year 2004 immediately after decision of the Full Bench of this Court dated 13.3.2003. Petitioners could have placed copy of the record of consolidation authorities to say entire land in question was not reserved for the common purpose, which admittedly they did not place. However, from the entry made by the consolidation authorities on 11.8.1952, as reproduced hereinbefore, and as per 'Sharat Wajib Ul Arj', property is proved to be earmarked for the purpose of Charand which is the common purpose. Therefore, I am not inclined to interfere in the judgment passed by Courts below. Petition is devoid of merit. Hence dismissed. (Alok Singh) Judge August 09, 2011 R.S.