Satish Kumar Mittal, J.
1. Gram Panchayat, Phull, Tehsil Shahkot, District Jalandhar has filed the instant petition under Articles 226 and 227 of the Constitution of India for issuance of a writ in the nature of Certiorari for quashing the impugned order dated 16.1.1998 (Annexure P3) passed by the Additional Director, Consolidation of Holdings, Punjab (respondent No. 2) vide which an application filed by some of the proprietors of the village under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as 'the Act') for partition of the land in question between the right holders of the village has been allowed and the matter was remanded to the Consolidation Officer, Jalandhar with the direction that he should re-partition the disputed land amongst the right holder's of the village.
2. The consolidation of Holdings took place in village Phull in the year 1961-62. During the consolidation, some land was reserved for common purposes of the village by imposing pro rata cut on the right holders of the village. The land in question, comprising Khewat No. 192, Khatauni Nos. 244 to 246, total measuring 76 Kanals 1 Maria was also reserved for the common purposes of the village during the consolidation of Holdings. This land has been described in the jamabandi for the year 1994-95 in the name of Musterka Malkan and in the column of cultivation, it has been described as Panchayat deh in possession of the lessee of the Gram Panchayat. The entry regarding lease money is also mentioned against some of the Khataunis in column No. 9 of the above said jamabandi. When the contesting respondents No. 4 to 15 filed the petition qua this land under Section 42 of the Act before the Additional Director, Consolidations, the same was not contested by the Gram Panchayat. The then Sarpanch stated before the Additional Director, Consolidations that the Gram Panchayat has no objection if the land in question is re-partitioned among the right holders of the village. Upon that stand taken by the Gram Panchayat, the impugned order was passed. But, subsequently the petitioner- Gram Panchayat decided to challenge the order dated 16.1.1998 (Annexure P3) passed by respondent No. 2. Hence, the instant writ petition was filed by the Gram Panchayat on 16.10.1998.
3. The learned counsel for the petitioner submitted that the consolidation authority has no jurisdiction to entertain a prayer for re-partition of the Musterka Malkan land reserved for common purposes of the village in the consolidation being a bachat land amongst the right holders under Section 42 of the Act. He submitted that before ordering the re-partition of such land, it has to be determined whether such land, which was reserved in consolidation for common purposes of the village, falls under the, definition of 'Shamlat deh' or the same has vested in the Gram Panchayat or not under Section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the Act of 1961). To determine such question whether the land in question is a 'Shamlat deh' or not or the same vests in the Gram Panchayat or not, only the Collector has the jurisdiction under the provisions of the Act of 1961. Neither the authorities under the Consolidation Act nor even the Civil Court has the jurisdiction to decide such question. Learned counsel further submitted that if it has been found by the authority under the 'Act of 1961' that such land neither falls under the definition of 'Shamlat deh' nor vests in the Gram Panchayat under the provisions of the Act of 1961, even then only the revenue Court has the jurisdiction to order partition of the land under the provisions of the Punjab Land Revenue Act, 1887. In support of his contention, learned counsel for the petitioner has relied upon a decision of Hon'ble Supreme Court in Gram Panchayat Nurpur v. State of Punjab and Ors., 1 (1997-2)116 P.L.R. 694 (S.C.); Gram Panchayat village Sidh v. The Additional Director, Consolidation of Holdings, Punjab and Ors., 1997(1) P.L.J. 313 and a Division Bench decision of this Court in Gram Panchayat, village Kotla Jagan v. The State of Punjab and Ors.,3 (CW.P. No. 19274 of 1997, decided on August 12, 1998.
4. On behalf of the respondents No. 5 to 15, Shri Kanwaljit Singh, Advocate submitted that the land in question belongs to Jumla Mushtarka Malkan which vests in the proprietors of the village. This land was reserved in the consolidation for common purposes, but the same was not utilised for that purpose. Therefore, neither it falls under the definition of 'Shamlat deh' nor it vests in the Gram Panchayat. Regarding the impugned order, he submitted that Additional Director, Consolidation was competent and was having jurisdiction to order re-partition of the land in question under Section 42 of the Act. Therefore, there is no illegality or jurisdictional error in the impugned order passed by respondent No. 2 and the writ petition filed by the petitioner-Gram Panchayat is liable to be dismissed.
5. After hearing the learned counsel for the parties and having perused the record of the case, I am of the opinion that the controversy in the present writ petition is squarely covered by the aforesaid decisions of the Apex Court in Gram Panchayat Nurpur (supra) and Gram Panchayat village Sidh (supra), wherein it has been held that the Additional Director Consolidation has no authority or jurisdiction to go into the question whether the land in dispute is Shamlat Deh or not. It has been further held that the question whether land is Shamlat deh or not, can only be decided by Authorities under the Act of 1961. The question whether the land in question is bachat land or not which is liable to be distributed amongst right holders is to be decided by the Collector under the Act of 1961. The Division Bench of this Court in Gram Panchayat Kotla Jagan (supra) has considered the question whether the Director Consolidation in exercise of his power under Section 42 of the Act has jurisdiction to order partition of the bachat land and has held as under :-
'In our considered view, the Director Consolidation has no jurisdiction to deal with such land and other partition of it amongst the right holders. The authorities under the Act can pass orders which are permissible under the provisions of the Act. The authorities at the time of re-partition can at the request of all the co-sharers partition their land and allot them a Kurra by taking valuation of their shares. In other words, the authorities under the Act either at the time of re-partition or on a subsequent date, have no jurisdiction to partition the land. This jurisdiction is only vested in the revenue officers under the Punjab Land Revenue Act.'
6. Admittedly, in the instant case the land in question was reserved during the consolidation for common purposes of the village. As per the contention of the petitioner-Gram Panchayat, this land falls under the definition of 'Shamlat deh', as the same is still being used for the common purposes of the village. Therefore, this land vests in the Gram Panchayat under Section 4 of the Act of 1961. It has been further averred that part of the land was given on lease by the Gram Panchayat to some of the contesting respondents. This averment of the petitioner-Gram Panchayat has been established and proved by the facts as mentioned in column No. 9 of the jamabandi for the year 1994-95. On expiry of the lease period, these respondents did not hand over the possession of the land to the Gram Panchayat and instead they filed a petition under Section 42 of the Act for re-partition of the land claiming themselves as owners of the land being proprietors of the village. There is no material on the record which shows how the respondents are members of the proprietary body what is their share and how much cut was imposed on their holding at the time of consolidation. Before ordering the partition of the land, it has to be determined whether the land in question is a Shamlat Deh or not as per the definition given in the Act of 1961 and the same does vest in the Gram Panchayat or not. The consolidation authority under the Act has no jurisdiction to determine such question which dan only be determined by the Collector under the provisions of Act of 1961. Therefore, in my opinion, the order passed by the Additional Director of Consolidation dated 16.1.1998 (Annexure P3) is wholly without jurisdiction and the same is liable to be set aside.
7. In view of the aforesaid, the writ petition is allowed and the impugned orderdated 16.1.1998 (Annexure P3) is hereby set aside with no order as to costs.