CWP No.18407 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.18407 of 2010 Date of Decision: 11.10.2010 Nishan Singh and others .....Petitioners Vs. Gram Panchayat, Rajabad, Tehsil and Distt. Fatehabad and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. R.S. Mittal, Sr.Advocate with Mr.Atul Gaur,Advocate for the petitioners. .... RAJIVE BHALLA, J The petitioners pray for issuance of appropriate writ, order or directions for quashing mutation No.448 (Annexure P-7). Counsel for the petitioners submits that the land in dispute was never used or reserved for common purposes of the Gram Panchayat or the village. The mutation sanctioned in favour of the Gram Panchayat should, therefore, be set aside. I have heard counsel for the petitioners, perused the paper book and find no reason to accept the arguments advanced by counsel for the petitioners. Apart from the fact that the mutation sanctioned in the year 2001, is sought to be challenged in the year 2010, the land in dispute is admittedly recorded as `Jumla Mushtarka Malkan Wa Digar Haqdaran Arazi CWP No.18407 of 2010 2 Hassab Rasad Raqba” i.e. land created during consolidation for the Gram Panchayat and for other common purposes in accordance with the statutory mandate of Section 18(c) and Section 23-A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,1948 (hereinafter referred to as `the Consolidation Act), read with Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as `Consolidation Rules). It would be appropriate to reproduce Section 18, 23-A of the Act and Rule 16(ii) of the Consolidation Rules. “ East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,1948 Section 18. Lands reserved for common purposes – Notwithstanding anything contained in any law for the time being in force, it shall be lawful for the Consolidation Officer to direct - (a) that any land specifically assigned for any common purpose shall cease to be so assigned and to assign any other land in its place ; (b) that any land under the bed of a stream or torrent flowing through or from the Shiwalik mountain range within the (State) shall be assigned for any common purposes ; (c ) that if any area under consolidation no land is reserved for any common purpose including extension of the village abadi, or if the land so reserved is inadequate, to assign other land for such purpose. Section 23-A. Management and control of lands for CWP No.18407 of 2010 3 common purposes to vest in Panchayats or State Government - As soon as a scheme comes into force, the management and control of all lands assigned or reserved for common purposes of the village under section 18 - (a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government; and (b) in the case of any other common purpose, shall vest in the Panchayat of that village ; and the State Government or the Panchayat, as the case may be, shall be entitled to appropriate the income accruing therefrom for the benefit of the village community and the rights and interests of the owners of such lands shall stand modified and extinguished accordingly ; Provided that in the case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non-proprietors of the village, such land shall vest in the proprietors and non-proprietors to whom it is given under the scheme of consolidation. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 Rule 16(i) XXX XXX XXX (ii) – In an estate or estates where during consolidation proceedings there is no shamlat deh land or such land is CWP No.18407 of 2010 4 considered inadequate land shall be reserved for the village Panchayat and for other common purposes, under Section 18(c) of the Act, out of the common pool of the village at the scale given in the Schedule to these rules) Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi proprietors and non-proprietors) shall vest in the proprietary body of the estate or estates concerned and it shall be entered in the column of ownership of record of rights as (Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad Raqba). The management of such land shall be done by the panchayat of the estate or estates concerned on behalf of the village proprietary body and the Panchayat shall have the right to utilise the income derived from the land so reserved for the common needs and the benefits of the estates concerned.” Section 18(c) of the Act provides for reservation of land for common purposes. Section 23-A of the Act provides that management and control of land reserved for common purposes specified in sub-clause(iv) of clause (bb) of Section 2 shall vest in the State Government, whereas for other common purposes, it shall vest in the Gram Panchayat. Rule 16(ii) of the Rules provides that “.... land shall be reserved for the village Panchayat and for other common purposes, under Section 18(c) of the Act, out of the common pool of the village.” Rule 16(ii) further provides that proprietary rights in respect of land so reserved shall vest in the proprietary body of the CWP No.18407 of 2010 5 estate and shall be entered in the column of ownership of the record of rights, as `Jumla Malkan Wa Digar Haqdaran Arazi Hassab Rasad Raqba'. Rule 16(ii) also provides that management of such land shall vest in the Panchayat, which shall have the right to utilise the income derived from the land so reserved. By way of an amendment in the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the `Act''), the State legislature has incorporated Section 2(g)(6), which reads as follows :- “2(g)(6) lands reserved for the common purposes of a village under section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the Gram Panchayat under Section 23-A of the aforesaid Act.” A combined reading of Section 18(c), Section 23-A of the Consolidation Act, Rule 16(ii) of the Consolidation Rules and Section 2(g) (6) of the 1961 Act clearly establishes that land described as `Jumla Mushtarka Malkan Wa Digar Haqdaran Arazi Hassab Rasad Raqba' shall vest in the Gram Panchayat for the purpose of management and control and shall by virtue of Section 2(g)(6) of the 1961 Act, be `Shamilat Deh'. The vires of Section 2(g)(6)came up for consideration before a Full Bench of this court in Jai Singh and others V. State of Haryana, 2003(2) PLR 658. A relevant extract from this judgment reads as follows :- “62. In view of the discussion made above, we hold that :- CWP No.18407 of 2010 6 i) sub-section (6) of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 and the explanation appended thereto, is only an elucidation of the existing provisions of the said Act read with provisions contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 ii) the un-amended provisions of the Act of 1961 and in particular, Section 2(g)(1) read with Sections 18 and 23-A of the Act of 1948 and Rule 16(ii) of the Rules of 1949 cover all such lands which have been specifically earmarked in a consolidation scheme prepared under Section 14 read with Rules 5 and 7 and confirmed under Section 20, which has been implemented under the provisions of Section 24 and no other lands; iii) the lands which have been contributed by the proprietors on the basis of pro-rata cut on their holdings imposed during the consolidation proceedings and which have not been earmarked for any common purpose in the consolidation scheme prepared under Section 14 read with Rules 5 and 7 and entered in the column of ownership as Jumla Mushtarka Malkan Wa Digar Haqdaran Hasab Rasad Arazi Khewat and in the column of possession with the proprietors, shall not vest with CWP No.18407 of 2010 7 the Gram Panchayat or the State Government, as the case may be, on the dint of sub section (6) of Section 2(g) and the explanation appended thereto or any other provisions of the Act of 1961 or the Act of 1948; iv) all such lands, which have been, as per the consolidation scheme, reserved for common purposes, whether utilised or not, shall vest with the State Government or the Gram Panchayat, as the case may be, even though in the column of ownership the entries may be Jumla Mustarka Malkans Wa Digar Haqdaran Hasab Rasad Arazi Khewat etc.” It is, therefore, apparent that land described as `Jumla Mushtarka Malkan, is that class of “Shamilat Deh” where ownership vests in proprietors and management and control vests in the Gram Panchayat. The petitioners' grievance that as this land was never used or reserved for common purposes, it cannot be recorded in the name of the Gram Panchayat, disregards the enunciation of law, set out in the preceding paragraphs. However, as the petitioners also allege that the land was never used or reserved for common purposes their remedy, if any, is to approach the Collector by way of a petition under Section 13(A) of the 1961 Act for adjudication of this plea. The petitioners have instead approached this court directly. The petitioners are therefore, relegated to their remedy of filing a CWP No.18407 of 2010 8 petition under Section 13(A) of the 1961 Act. Disposed of accordingly. 11.10.2010 (RAJIVE BHALLA) GS JUDGE