Judgment:
Ashok Bhan, J.
1. Gram Panchayat Village Panjour,Tehsil Garhshankar District Hoshiarpur (hereinafter referred as respondentNo. 3) through its Sarpanch instituted an application under Section 7 of Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred as 'Act') before the District Development and Panchayat Officer-cum-Collector, Hoshiarpur (hereinafter referred as respondent No. 2). A direction was sought that respondent-3 be put in possession of land measuring 5 marlas comprised in khasra No.2171, Khewat No. 464, khatauni No. 1237 situated in the village as the land vests or deemed to have been vested in the Gram Panchayat. Reply to the application was filed by the petitioner. In the reply it was admitted that in the jamabandi in the ownership column the name of Gram Panchayat had been entered but in the column of cultivation, it is shown 'Makbuja malkan'. That father of the petitioner was one of the proprietors in the village. That Khasra No. 2171 is shown 'Gear Mumkin in Abadi' in possession of the father of petitioner since 1946. That the land did not vest in the Gram Panchayat.
2. Respondent-3 did not lead any evidence in spite of six opportunities having been granted to it. Petitioner produced Amar Nath his 'Mukhtiar Khas' as AW1 who proved the pleas taken by the petitioner in reply to the application for ejectment. This witness produced jamabandis for the year 1946-47 Ex. P2, 1953-54 Ex. Rs, 1958-59 Ex. R4,1968-69 Ex. R5, 1973-74 Ex. R6. In these jamabandis the land in dispute is entered 'shamlat deh hasab rasad khewat' in possession of 'Makbuja Malkan' and its nature is mentioned as 'Gair Mumkin AbadV. In the jamabandis 1958-59, 1968-69 the land in dispute is mentioned in the ownership of Gram Panchayat deh while all other entries remain the same. This witness also produced the receipt for Rs. 1282/-donated by the petitioner to the Gram Panchayat on 21st September, 1979. Respondent-2 inspected the spot on 12th August, 1979 and in his inspection report made the following observations;
'The spot was also inspected by me and the Naib Tehsildar on 12.8.1979 and the report of the same date is on the file in which he has mentioned that Prem Singh and others are in possession of the land in dispute since 1946-47 and he cannot be dispossessed therefrom. Gram Panchayat and all others present had verified that Prem Singh was in possession of the land since long.'
Respondent No. 2 after going through the arguments of the counsel for the parties and taking into consideration the fact that respondent-3 did not produce any evidence in support of its application for ejectment in spite of several opportunities having been given to it for this purpose and further after taking into consideration evidence produced by the petitioner and the inspection carried by himself came to the conclusion that father of the petitioner was in possession of the land in dispute since 1946-47 being a proprietor in the village and a share holder of the shamlat deh, rejected the application filed by respondent-3 for ejectment of the petitioner from the land in dispute vide his order dated 28th March, 1980 Annexure P2 to the petitioner.
3. Respondent No. 3 being aggrieved filed an appeal before Joint Director Panchayats exercising the powers of Commissioner (hereinafter referred as respondent.1). The appeal was accepted by respondent-1 vide order dated 18.12.1980 Annexure P3 to the writ petition. It was also held that in the jamabandi the land was shown to be under the ownership of Gram Panchayat and in the cultivation column the entry was 'Makbuja Malkan'. From this it was concluded that the petitioner had failed to prove his ownership of the land and his possession. Appeal was accepted. Aggrieved against the order Annexure P3, petitioner has filed this writ petition. Written statement has been filed by respondent-3.
4. I have heard the counsel for the parties at length and in my view this writ petition deserves to succeed.
5. Respondent No. 2 in his order Annexure P2 had recorded finding on the basis of evidence produced by the petitioner and his own inspection note that petitioner was in possession of the land in dispute since long. Respondent No.3 Gram Panchayat did not lead any evidence in rebuttal with regard to the finding recorded by respondent No. 2. Respondent No. 1 while sitting aside the order of respondent No. 2 did not deal with this aspect of the matter in his order. Without reversing the finding of fact that the petitioner or his father were in possession of the disputed land since 1946-47 the findings recorded by respondent No. 2 could not be set aside by respondent No. 1. Respondent No. 2 came to a firm finding of fact that the petitioner or his father were in possession of the land undisputedly since 1946-47.
6. The controversy between the parties can be looked from another angle. Section 2(g) of the Act defines 'Shamlat deh' has 'lands described in the revenue records as Shamlat Deh excluding abadi deh. Section 4 of the Act deals with the vesting of rights in Panchayats and non-proprietors. Section 4 of the Act as applicable to the State of Punjab is reproduced below: -
' (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in the land, -
a) which is included in the Shamlat deh of any village and which has not vested in panchayat under the Shamlat law shall, at commencement of this Act, vest in panchayat constituted for such village, and, where no such panchayat has been constituted for such village, vest in the Panchayat on such date as a Panchayat having jurisdiction over that village is constituted;
b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non proprietor, shall, on the commencement of the Shamlat law, be deemed to have been vested in such non-proprietor.
2) Any land which is vested in a panchayat under the Shamlat law shall be deemed to have been vested in the Panchayat under this Act.
3) Nothing contained in cause (a) of Sub-section (1) and in Sub-section (2), shall affect or shall be deemed ever to have effected the-
(i) existing rights, title or interests of persons, who, though not entered as occupancy tenants in the revenue records, are accorded a similar statute by custom or otherwise, such as Dholidars, Bhondedars,Butimers, Basikhuopahus, Sannjidars, Muqararidars;
(ii) rights of persons in cultivating possession Shamilat deh, for more than twelve years immediately preceding the commencement of this Act, without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon;
(iii) rights of mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.'
Clause 2(a) of sub section 3 of Section 4 starts with a non-obstante clause that notwithstanding anything contained in clause (a) of Sub Section 1 and in sub section (2) shall affect or shall be deemed to have ever affected the rights of persons in cultivating possession in shamilat deh for more than twelve years immediately preceding the commencement of this Act, without payment of rent or payment of charges not exceeding the land revenue and cesses payable thereon. Respondent No. 2 had found that petitioner or his father were in possession of the land in dispute since 1946-47. The present Act came into force in the year 1961. In other words the petitioner himself or through his father was found in possession of the property 12 years preceding the commencement of the Act. It has not been proved by respondent No. 3 that petitioner was paying any rent or any charges exceeding the land revenue and cesses payable thereon. The land in dispute, therefore, did not vest in the Gram Panchayat because of clause 2(a) of sub section (3) of Section 4. Since the petitioner's father was found in possession of the land since 1946, the land in dispute would fall within the purview of clause (ii) of sub section (3) of section 4 which is a mandatory provision of the statute and the land could not vest or deemed to have vested in Panchayat. Petitioner, therefore, could not be ejected from the land in dispute under Section 7 of the Act.
7. For the reasons stated above, this writ petition is accepted, order Annexure P3 passed by respondent-1 is set aside and the order Annexure P2 passed by respondent No.2 is restored. Application filed by respondent-3 under Section 7 of the Act for ejectment of the petitioner shall stand dismissed. There will be no order as to costs.