Civil Writ Petition No.4947 of 1994. 1 In the High Court of Punjab and Haryana at Chandigarh. Civil Writ Petition No.4947 of 1994. Date of decision:21.9.2006. Surjit Kaur and another. ...Petitioners. Versus State of Punjab and others. ...Respondents. ... Coram: Hon'ble Mr. Justice S. N. Aggarwal. ... Present: Mr.Ashok Aggarwal, Senior Advocate with Mr.Mukul Aggarwal, Advocate for the petitioners. Mr.Prem Kumar, AAG Punjab for respondent Nos.1 to 3. Mr.J.S.Bhandohal, Advocate for respondent No.4. Judgment. S.N.Aggarwal, J. Surjit Kaur petitioner is the widow of Naik Charan Singh who died on 16.11.1962 while fighting Indo China War. Smt. Darshana alias Darshan Kaur, petitioner No.2 is the daughter of Sepoy Hardeep Singh who died on 18.11.1962 in the same war. The petitioners were found eligible for the allotment of 80 Kanals of land each in lieu of army service rendered by Naik Charan Singh and Sepoy Hardeep Singh respectively. Originally, they were allotted land in village Civil Writ Petition No.4947 of 1994. 2 Panjgranwala, Tehsil Ajnala, District Amritsar in the year 1971 but the said allotment was set aside by the SDO (Sales) vide his order dated 19.1.1993. The petitioners found that allotable land was available in village Chapper Chiri Kalan, Tehsil Kharar, District Ropar. They applied for the transfer of their case in district Ropar. Accordingly, the case was received by transfer by the Deputy Commissioner, Ropar, vide Government letter dated 12.12.1992. The Joint Secretary, Revenue and Rehabilitation vide his letter dated 10.9.1993 asked the Deputy Commissioner, Ropar to decide the allotment case of the petitioners in accordance with the provisions of the Punjab Package Deal Properties (Disposal) Act, 1976 (in short Package Deal Act). After determining the eligibility of the petitioners, the Tehsildar (Sales)-cum-Managing Officer, Kharar (respondent No.3) examined the case of the petitioners and passed order dated 8.10.1993 allotting 10 acres of land each to the petitioners (Annexure P-1). In pursuance thereof, the petitioners deposited the necessary amount. During the pendency of the proceedings before respondent No.3, the Gram Panchayat of village Chapper Chiri Kalan (respondent No.4) filed a petition before the District Development & Panchayat Office, Ropar (respondent No.1) on 6.10.1993. Respondent No.1 restrained respondent No.3 vide order dated 6.10.1993 from allotting the land to the petitioners. In spite of that, respondent No.3 allotted the land to the petitioners on the plea that the land under reference was an Civil Writ Petition No.4947 of 1994. 3 evacuee property and respondent No.1 had nothing to do with it. The said case was decided by respondent No.1 vide order dated 16.11.1993 (Annexure P-5) and declared the land under reference to be Shamlat land which vested in respondent No.4. The Tehsildar (Sales), Kharar, (respondent No.3) vide passed the order dated 22.11.1993 cancelled the allotment. Hence the present writ petition was filed by the petitioners challenging the legality and validity of order dated 16.11.1993 (Annexure P-5) passed by respondent No.1 by which respondent No.4 was declared to be the owner of the suit property, Annexure P-8, which is a letter sent by the Block Development & Panchayat Officer to the S.D.O(Civil), Kharar on 16.11.1993 and the order passed by the Tehsildar (Sales)-cum-Managing Officer, Kharar on 22.11.1993 (Annexure P-9) holding that the whole area of village Chapper Chiri Kalan is used for common purposes of the villagers by the Gram Panchayat and,therefore, no land was worth allotment. Respondent Nos.2 and 3 filed the written statement and contested the case. Their version was that the petitioners were claiming allotment of land under the Package Deal Act for which no writ was maintainable. No allotment slip was yet issued to the petitioners and,therefore, no cause of action accrued to them. No record was produced by the petitioners to prove their allotment in the year 1971 or its cancellation thereafter. It was further pleaded that as per the Civil Writ Petition No.4947 of 1994. 4 provisions of Package Deal Act only the land which is surplus with the custodian could be allotted to the eligible candidates. Since there was no custodian land, therefore, the question of allotment of this land to the petitioners did not arise. Moreover, only that land could be allotted to the petitioners which was not used for common purposes of the villagers and no such land was available which was not being used for common purposes of the villagers. The appeal was pending against the order dated 8.10.1993 passed by the Tehsildar (Sales)-cum-Managing Officer, Kharar. Hence the dismissal of the writ petition was prayed. The Gram Panchayat of village Chapper Chiri Kalan, respondent No.4 also filed written statement and contested the case. Their version was that order dated 16.11.1993 (Annexure P-5) passed by the District Development and Panchayat Officer, Ropar, respondent No.1 was appealable order. Similarly, order dated 22.11.1993 (Annexure P-9) passed by the Tehsildar (Sales), Kharar, respondent No.3 was also appealable. No appeal has been filed either against the order dated 16.11.1993 (Annexure P-5) or against the order dated 22.11.1993 (Annexure P-9). The petitioners have not availed the alternative remedy available to them. Therefore, the writ petition was not maintainable. It was also pleaded that the State of Punjab cannot be represented by the District Development & Panchayat Officer, respondent No.1. He was only the Collector under the Punjab Village Common Lands (Regulation) Act, 1961 (in short Common Lands Civil Writ Petition No.4947 of 1994. 5 Act,1961) and not for the purpose of representing the State of Punjab in the Courts. It was further pleaded that the suit land was Shamlat Deh. It was being used for the common purposes of the villagers. It was not evacuee property. It was not Package Deal Property also. It was never declared evacuee property under Section 7-A of the Administration of Evacuee Property Act,1950 and no property could be declared to be evacuee property after 7.5.1954 as per provisions of Section 7-A of the said Act. No provision of law has been quoted under which the petitioners are entitled to allotment of land. Legal objections were also taken. It was also pleaded that the appeal filed against the order dated 8.10.1993 has been dismissed on 4.1.1994 as infructuous. Hence, dismissal of writ petition was prayed. The submission of learned counsel for the petitioners was that respondent No.3 had allotted land to the petitioners vide order dated 8.10.1993 (Annexure P-1). Thereafter he nullified the same by passing the order dated 22.11.1993 (Annexure P-9) for which he had no right. It was also submitted that the suit land could be Shamlat Deh only if it falls within the definition of Section 2(g)(3) of the Common Lands Act,1961 and does not fall within the proviso (V) of the said Act but the respondent No.1 while exercising the powers of the Collector under Section 11 of the Common Lands Act held the suit land to be Shamlat Deh. He places reliance on the Full Bench Judgment of this Court reported as Gram Panchayat Sadhraur Versus Baldev Singh Civil Writ Petition No.4947 of 1994. 6 and others, 1977 P.L.J 276, Amar Singh etc. Versus Gram Panchayat, Mundhal Khurd, 1979 P.L.J,318 and Gram Panchayat of village Mundhal Khurd Versus Amar Singh (Dead) by Lrs. and others, (2000) 10 Supreme Court Cases 644. It was, therefore, submitted that the order dated 16.11.1993 passed by respondent No.1 and order dated 22.11.1993 passed by respondent No.3 be set aside. On the other hand, the submission of learned counsel for the respondents was that only the Collector has the powers under Section 11 of the Common Lands Act to determine whether a particular piece of land comes within the definition of Shamlat Deh or not and no other authority has any jurisdiction to determine the said issue. Respondent No.1 while exercising the said powers has held the suit land to be Shamlat Deh vide order dated 16.11.1993. If any person was aggrieved against this order, appeal was maintainable under Section 11 (2) of the Common Lands Act. Hence, it was prayed that since the land has been declared as Shamlat Deh, therefore, the order dated 8.10.1993 passed by respondent No.1 has no legal existence. There was no illegality in the order dated 16.11.1993 passed by respondent No.1or in the order dated 22.11.1993 passed by respondent No.3. Hence, dismissal of writ petition was prayed. These submissions have been considered. It was not disputed that the petitioners were the dependents of the army men who attained martyrdom in the Indo-China Civil Writ Petition No.4947 of 1994. 7 war in the year 1961-62 and that they were entitled to the allotment of land. The only contest was whether the land under reference could be allotted to the petitioners. This land was owned by Shamlat Patti Bahadur Hasab Rasad Jar Khewat and Shamlat Patti Ghamanda (Annexure P-6) in which the Muslims proprietors were also co-sharers along with Hindu proprietors. After the migration of Muslim proprietors to Pakistan, their interest in this land became evacuee property which came to be vested in the Central Government under the Administration of Evacuee Property Act,1950 and it could be allotted by the Central Government to the displaced persons under the provisions of Displaced Persons (Compensation and Rehabilitation Act,1954). However, the surplus evacuee property was taken over by the State Government under the Package Deal Act and, therefore, the Punjab Government becomes entitled to allot this land to the eligible persons. The order dated 8.10.1993 was passed by respondent No.1 under the provision of Package Deal Act. The important question to be decided, in the present case, is whether the proprietory interest in the land under reference which the Muslims who have migrated to Pakistan had, could become evacuee property and was transferable by the State of Punjab through its functionaries. The answer to this question can be found in the judgment of the Hon'ble Constitutional Bench of the Hon'ble Supreme Court reported as Gram Panchayat of Village Jamalpur,v.Malwinder Civil Writ Petition No.4947 of 1994. 8 Singh and others, AIR 1985 Supreme Court 1394 . It was observed by the Hon'ble Supreme Court as under:- “There were some villages in Punjab which were mostly inhabited by Muslims, with the result that almost all the lands in those villages were owned by Muslim proprietors who,as a result of their proprietary interest in those lands, had a proportionate undivided share in the shamlat-deh lands. They had only an 'undivided' share in the Shamlat- deh lands because such lands were not liable to be partitioned,they could not be alienated and,they were intended to be used and were in fact used, without exception, as undivided property of the proprietors of the other lands. Indeed, our learned Brother has cited a passage from Rattigan's Digest of the Customary Law in the Punjab', which shows that Shamlat-deh lands were treated as reserved for common village purposes. Some of the villages in Punjab and, many in Haryana, were inhabited partly by Muslims and partly by non-Muslims. Most of the Muslim proprietors migrated to Pakistan whereas, the non- Muslims continued to live in their villages.” It was held by the Hon'ble Supreme Court that although the Muslims interest in the shamlat property becomes evacuee property but it is not disposable. It was held by the Hon'ble Supreme Court as Civil Writ Petition No.4947 of 1994. 9 under:- “The most significant impact of this divestment, though somewhat of an academic nature, is that the Rehabilitation Department of the Central Government loses its power to allot such lands, to the extent of the evacuee interest therein, to displaced persons in order to satisfy their claims under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Such properties,therefore, cannot form part of the compensation pool. Nor can these properties,to the extent of the surplus remaining after allotment to displaced persons, be transferred by the Central Government to the State Government under the 'Package Deal' of 1961. We said that the impact of repugnancy is somewhat of an academic nature because, what vests in the custodian is the interest of the evacuee such as it is, that is to say,together with all the incidents to which the evacuee interest was subject. That interest cannot be freed from its incidents merely because it comes to be vested in the custodian as evacuee property. The Custodian gets what the evacuee had, quantitatively and qualitatively. If the evacuee's interest in the Shamilat was incapable of alienation and if Shamlat-deh lands were regarded as reserved for the common use of the villagers, the custodian Civil Writ Petition No.4947 of 1994. 10 would have no right to allot them for the separate or exclusive use of displaced persons who migrated to India after the partition of the country. If no allotment could be made by the Custodian under the Displaced Persons (Compensation and Rehabilitation) Act of 1954, there would be no question of any surplus and, consequently, no occasion to transfer 'surplus' land to the State Government under the Package Deal of 1961. The peculiar incidents of the co-sharers interest in the Shamlat-deh lands and the severe limitations operating upon that interest render the provisions of the Central Act of 1950 virtually innocuous and inoperative. The Custodian, under that Act, would have the husk of the title to the evacuees interest in the shamlat- deh lands as a result of the vesting of that interest in him but,beyond such vesting,he would be powerless, in practice,to distribute those lands to the displaced persons. The hall mark of the Shamlat-deh lands in their indivisibility and inalienability (See Rattigan's Digest' to which our learned Brother, Chinnappa Reddy, J. has made a copious reference). His Lordship Hon'ble Mr. Justice Chinnappa Reddy who was the member of the Hon'ble Constitutional Bench was pleased to write a separate judgment although with the same conclusion. It was Civil Writ Petition No.4947 of 1994. 11 observed as under:- “The effect of the operation of the Provincial and Central Acts relating to evacuee property was that Evacuee Property became vested in the Custodian but it must be noted that what became vested in the Custodian was that property left behind by the evacuee, no more and no less. If the evacuee had left behind him Khewat land it became vested in the Custodian. If the evacuee had left behind him the right to share in Shamilat-deh lands, that too became vested in the Custodian. The vesting,however, did not divest Shamilat-deh lands of their character as Shamilat- deh lands and convert them into Khewat land. Shamilat- deh lands could only continue and did continue to be Shamilat-deh even after they became vested in the Custodian and the Custodian could only deal with them as Shamilat-deh lands in the same manner in which the Muslim proprietors could have dealt with them had they not migrated to Pakistan. That was the position after the Parliament enacted the Administration of Evacuee Property Act,1950.” The submission of learned counsel for the petitioners was in the reported judgment, it was a case of Shamlat-deh land and, therefore, did not apply to the facts of the present case. No doubt, it Civil Writ Petition No.4947 of 1994. 12 was a case of Shamlat Deh. Even the land of Shamlat Patti can be Shamlat Deh if it fulfils the requirements laid down in Section 2(g)(3) and (5) of the Common Lands Act. It is to be determined by the Collector under Section 11 of the Common Lands Act as to which land constituting Shamlat Patti constitutes Shamlat Deh. In the present case, the District Development & Panchayat Officer in exercise of powers vested in him under Section 11 of the Common Lands Act has held the land to be Shamlat Deh. Therefore, the submission of the learned counsel for the petitioners just stands frustrated. It was then submitted by the learned counsel for the petitioners that as per the requirements of Section 2(g)(3) of the Common Lands Act, only that land of Shamlat Patti which is used, according to the revenue record, for the benefit of the village community or a part thereof for common purposes of the village, can be declared as Shamlat Deh and not otherwise. It was submitted that it is not so recorded in the Jamabandi for the year 1986-87 (Annexure P- 6) if the land under reference is being so used and,therefore, the findings recorded by the District Development & Panchayat Officer in the order dated 16.11.1993 are against the statutory provisions. This submission again appears to be fallacious. The petitioners have placed on the file only one Jamabandi for the year 1986-87. The remaining revenue record i.e. Jamabandies either for the period prior to 1986-87 or for the period after 1986-87 has not been Civil Writ Petition No.4947 of 1994. 13 produced on the file. Otherwise also, Jamabandi for the year 1986-87 (Annexure P-6) shows that a Nadi i.e. river or rivulet or a Nala flows over the entire land owned by Shamlat Patti Bahadur. It means, therefore, that the water flows through the suit land. It is for the benefit of the village community. If the water is stopped, it would enter the houses of the villagers or it would enter the crops and cause huge loss to the crops and places of residences of the villagers. Since the rivulet flows through the suit land,therefore, it is for the common purposes of the village. This rivulet is not confined only to the proprietors of the Patti but this benefit is derived by all residents of the village. The land of Shamlat Patti Ghamanda is also partly covered by the Nadi (rivulet) and part of it, is Banjar Qadim. The flow of rivulet, as discussed above, is for the common purposes of the village and is for the benefit of the village community. Even the Tehsildar (Sales) in his order dated 8.10.1993 had observed that sullage water flows through the suit land. Flow of sullage water is for the benefit of the village. If the water is made stagnant or its flow is stopped, it would create havoc for the lives of the villagers giving rise to numerous diseases. Therefore, if the sullage water flows through the suit land, it is for the benefit of the village community. The remaining land of Shamlat Patti Ghamanda has been Civil Writ Petition No.4947 of 1994. 14 referred to as Banjar Qadim within the meaning of Section 2(g)(5) of the Common Lands Act. The District Development & Panchayat Officer in the order dated 16.11.1993 has held that the village panchayat is using this land for the common purposes of the villagers. Although it is not so shown in the Jamabandi for the year 1986-87,but the substantial portion of suit land is Shamat Deh within the meaning of Section 2(g)(3). That being so, the judgment of the Hon'ble Supreme Court in Gram Panchayat's case (supra) becomes fully applicable to the facts of the present case. Therefore, there is no illegality in the order dated 16.11.1993 passed by respondent No.1 by which the land under reference was declared to be Shamlat land within the meaning of Section 2(g) of the Common Lands Act. Even if some portion of the land in Shamlat Patti Ghamanda is taken to be not Shamlat Deh, the interest of the Muslims in the said Patti was inalienable and indivisible .No Muslim proprietor had the right to sell or divide any part of this land. Therefore, applying the analogy of law laid down by the Hon'ble Supreme Court in Gram Panchayat's case (supra), the suit land becomes inalienable and indivisible and, therefore, was not available to the Tehsildar (Sales)- cum-Managing Officer to deal with this property under the Package Deal Act. It, therefore, reveals that the order dated 8.10.1993 cannot be sustained. Civil Writ Petition No.4947 of 1994. 15 Even for the sake of arguments,even if it is presumed that the order dated 8.10.1993 was legal and valid,the Sales Qanungo was further directed to identify the land which was not being used for the common purposes of the villagers. The Tehsildar (Sales)-cum- Managing Officer vide order dated 22.11.1993 held that the custodian land was being used for common purposes of the village and,therefore, was not available for allotment to the petitioners. There is no illegality in the order dated 16.11.1993 (Annexure P-5). There is also no illegality in the impugned order dated 22.11.1993 passed by the Tehsildar (Sales)-cum-Managing Officer. In the net result, this petition fails and it is held that neither the property was available to respondent No. 3 for allotting the same to the petitioners nor the said allotment is legal and valid. This petition is dismissed. September 21 ,2006. ( S. N. Aggarwal) Jaggi Judge