Present: Mr. Vikas Mehsempuri Advocate Vs. Joint Development Commissioner/Rural Development and - Court Judgment

Civil Writ Petition No.13700 o”

1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13700 of 1999 Date of Decision:

20. h December, 2012 Nachhattar Singh and others ..Petitioners versus Joint Development Commissioner/Rural Development and Panchayats, Punjab and others ..Respondents Present: Mr.P.K.Gupta, Advocate for the petitioners Mr.Rajinder Goyal, Addl.A.G., Punjab for respondent Nos.1 and 2.

Mr.Ashok Sharma, Advocate for respondent no.3.

And Civil Writ Petition No.11589 of 2010 Amrik Singh ..Petitioner Versus Director, Panchayats, Punjab and others ..Respondents Present: Mr.Vikas Mehsempuri, Advocate, for the petitioner.

Mr.Rajinder Goyal, Addl.A.G., Punjab for respondent Nos.1 and 2.

Ms.Sangita Dhanda, Advocate for respondent No.3.

CORAM: HON'BLE Mr.JUSTICE RAJIVE BHALLA HON'BLE MRS.JUSTICE REKHA MITTAL RAJIVE BHALLA, J.

By way of this order, we shall dispose of Civil Writ Petition Civil Writ Petition No.13700 o”

2. Nos.13700 of 1999 titled as Nachhattar Singh and others versus Joint Development Commissioner, Rural Development and Panchayat, Punjab and others and 11589 of 2010 titled as “Amrik Singh versus Director, Panchayat, Punjab and others”., as they arise from a common order and involve adjudication of similar questions of fact and law.

However, for the sake of convenience, facts are being taken from Civil Writ Petition No.13700 of 1999.

The petitioners pray for issuance of a writ in the nature of certiorari quashing orders dated 12.8.1998 (Annexure P-3) passed by Collector-cum-District Development and Panchayat Officer, Patiala and dated 15.7.1999 (Annexure P-4) passed by the Joint Development Commissioner, Rural Development and Panchayat, Punjab, exercising the powers of `Commissioner'.

The petitioners filed an application under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as “the Consolidation Act”.) for partition of the land, in dispute, and for correction of, an alleged, error in consolidation proceedings.

The application was allowed on 9.9.1996, but this order was set aside in Civil Writ Petition No.1150 of 1997, filed by the Gram Panchayat, vide order dated 18.8.1998 by holding that the Additional Director, Consolidation, had no jurisdiction to entertain the petition or decide a question of title.

During pendency of the writ petition, the Gram Panchayat filed a petition under section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as “the 1961 Act”.) for a declaration that order dated 9.9.1996 passed by Civil Writ Petition No.13700 o”

3. the Additional Director, Consolidation, is without jurisdiction.

In the meanwhile, a petition filed under section 7 of the 1961 Act, was ordered to be decided, along with the petition filed under section 11 of the 1961 Act.

The Collector/Divisional Deputy Director, Rural Development and Panchayats, Punjab, vide order dated 12.8.1998 accepted the petition, declared that the Gram Panchayat is owner of the land, in dispute, and ordered ejectment of the petitioners Aggrieved by these ordeRs.the petitioners filed an appeal which was dismissed on 15.7.1999.

Counsel for the petitioners submits that as the land, in dispute, is, admittedly, recorded as “Shamilat Deh Hasab Hisas Mundarja Shajra Nasab”., in possession of “Makbuja Malkan”., the land belongs to proprietors and does not vest in the Gram Panchayat.

Despite clear entries in the revenue record, mutation No.31 dated 28.2.1963 transferring land measuring 1203Kanals- 08Marlas in favour of the Gram Panchayat, was wrongly recorded.

Section 2(g) of the 1961 Act, provides that “Shamilat Deh”.

shall include land described as “Shamilat Deh”.The land is, admittedly, “Shamilat Deh Hasab Hisas Mundarja Shajra Nasab”., and is, therefore, excluded from “Shamilat Deh”.It is further submitted that as the land, in dispute, is consistently recorded as “Banjar Qadim”.

in jamabandis from the years 1943-44 uptil the year 1960-61, it is excluded from “Shamilat Deh”.It is further contended that a reading of the Wazib-Ul-Arz, appended with Civil Writ Petition No.13700 of 1999, as Annexure P-13, clearly reveals that “Shamilat Deh”.

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4. village is to be partitioned amongst proprietORS.The jamabandis, which were produced before the Collector, have not been considered, much less adverted to by the Collector or the Appellate Authority.

It is also argued that a mutation, sanctioned on the basis of a letter issued by the Government, does not confer any right or title.

It is further submitted that the finding that as the petitioners were lessees of the Gram Panchayat, they are estopped from questioning the ownership of the Gram Panchayat, is contrary to a judgment of this Court in Gram Panchayat, village Bhedpura, Tehsil and District Patiala versus Additional Director, Consolidation, Punjab, reported as 1997(2) RCR 259.

Counsel for the Gram Panchayat-respondent no.3, submits that as the land is recorded as “Shamilat Deh”., it came to vest in the Gram Panchayat, firstly under section 3 of the Pepsu Village Common Lands (Regulation) Act,1954 (hereinafter referred to as the

“195. Act”.) and also known an Shamilat Law and thereafter, under section 2(g) of the 1961 Act.

It is also argued that mutation was sanctioned on the basis of the statutory declaration contained in Section 3 of the 1954 Act.

It is further contended that the plea, that as the land was “Banjar Qadim”., and, therefore, does not vest in the Gram Panchayat, was not raised either before the Collector or the Appellate Authority and, as such, cannot be raised for the fiRs.time in the present proceedings.

It is further argued that even if this plea is considered, the Wazib-Ul-Arz relied by the petitioners clearly records that “Banjar Qadim”.

land shall be used as a “grazing ground”.Civil Writ Petition No.13700 o”

5. We have heard counsel for the parties, perused the impugned orders as well as the paper book and express our inability to issue the writ, as prayed.

The Gram Panchayat has claimed ownership on the ground that the land, in dispute, is “Shamilat Deh”.The petitioner, however, argues that as the land is recorded as “Shamilat Deh Hasab Hisas Mundarja Shajra Nasab”., and in possession of “Makbuja Malkan”., it is excluded from “Shamilat Deh”.The argument, in our considered opinion, disregards the provisions of the 1954 and the 1961 Acts as well as the meaning of the expression “Shamilat Deh Hasab Hisas Mundarja Shajra Nasab”.The 1954 Act was enacted to vest land described as “Shamilat Deh”., in a “Gram Panchayat”.Section 3 of the 1954 Act, reads as follows: “3 Vesting of rights in panchayats and in non- proprietORS.Notwithstanding anything to the contrary contained in any other law for the time being in force, and notwithstanding any agreement, instrument, custom, or usage or any decree or order of any court or other authority, all right, title and interest whatever in the land- (a) which is included in the Shamilat Deh of any village, shall, on the appointed date, vest in a panchayat having jurisdiction over the village; (b) which is situated in the Abadi Deh of a village and which is under the house owned by a non-proprietor, shall at the commencement of this Act vest in the said non- Civil Writ Petition No.13700 o”

6. proprietor.”

The 1954 Act, was, however, repealed by the 1961 Act.

Sections 3 and 4, of the 1961 Act, provide that the 1961 Act, shall apply and before the commencement of the 1961 Act, the Shamilat law (the

“195. Act”.) shall always be deemed to have applied to all lands that are “Shamilat Deh”.

as defined in clause (g) of Section 2 of the 1961 Act.

A relevant extract, from Sections 3 and 4 of the 1961 Act, reads as follows: “3 Lands to which this Act applies.-- (1)This Act shall apply, and before the commencement of this Act, the Shamilat law shall be deemed always to have applied, to all lands which are shamilat deh as defined in clause (g) of Section 2.

(2).XX XX XX (i) XX XX XX (ii) XX XX XX (3) XX XX XX “4 Vesting of rights in Panchayats and non-proprietors.-- (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 shamilat deh of any village and which has not vested in a Panchayat under the shamilat law shall, at the commencement of this Act, vest Civil Writ Petition No.13700 o”

7. in a 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 shamilat law, be deemed to have been vested in such non-proprietor.

(2) Any land which is vested in a Panchayat under the shamilat law shall be deemed to have been vested in the Panchayat under this Act.

(3) Nothing contained in clause (a) of sub-section (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the:- (i) existing rights, title or interests of persons, who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as DholidaRs.BhondedaRs.ButimaRs.Basikhuopahus, SaunjidaRs.MuqararidaRs.(ii) rights of persons in cultivating possession of 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 a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950.”

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8. A perusal of Section 3 of the 1954 Act and the opening sentence of sub-clause (1) of Section 3 and Section 4 of the 1961 Act, leaves no manner of doubt, as to legislative intent that land “Shamilat Deh”., that had come to vest in a Gram Panchayat under the shamilat law, i.e., the 1954 Act, would be excluded from “Shamilat Deh”., only if it falls within any of the exclusion clauses enacted by Sections 2(g).3 or 4 of the 1961 Act.

At this stage, it would be appropriate to point out that before enactment of the 1954 Act, proprietary and possessory rights, in “Shamilat Deh”.

of a village, vested in proprietors but to the exclusion of not proprietORS.Shamilat Deh of the village was generally assigned the nomenclature “Shamilat Deh Hasab Rasad Zare Khewat”.

or such like similar expressions.

Shamilat Deh is the common land of a village because it described as such (common land) and not because of the words “Hasab Rasad Zare Khewat, “Hasab Hissas Mundarja Shajra Nasab”.The words “Hasab Rasad Zare Khewat, “Hasab Hissas Mundarja Shajra Nasab”.

etc.denote the manner of calculating share holdings of proprietORS.and, therefore, do not qualify or indicate the nature of the land.

It would also be necessary to point out that after enactment of the 1954 and the 1961 Acts, the expressions “Hasab Hissas Mundarja Shajra Nasab”.

etc., lost their relevance as “Shamilat Deh”.

of a village, came to statutorily vest in a Gram Panchayat.

Our opinion is fortified by the following Division Bench judgments of this Court:- Gram Panchayat Ugani versus State of Punjab, 1997(2) PLJ 3.Kashmir Singh and others versus Joint Development Commissioner (IRD).Punjab, Civil Writ Petition No.13700 o”

9. Chandigarh and otheRs.2006(1) L.A.R.607 and Civil Writ Petition No.9368 of 2007 (Sita Ram etc.versus Gram Panchayat Ismaila etc.) After enactment of the 1954 Act, all the rights, title or interest, held by proprietors and non-proprietors in “Shamilat Deh, whatever be the words and expressions that follow the words “Shamilat Deh”., came to vest in Gram Panchayat by a statutory declaration contained in Section 3 of the 1954 Act.

It is, therefore, beyond debate that as the land was, admittedly, “Shamilat Deh”., it came to vest in the Gram Panchayat under Section 3 of the 1954 Act and as Sections 2(g).3 and 4 of the 1961 Act, do not exclude land described as “Shamilat Deh Hasab Rasad Zare Khewat”., “Shamilat Deh Hasab Hissas Mundarja Shajra Nasab”.

etc., from “Shamilat Deh”., the land, in dispute, is included in “Shamilat Deh”.

and, therefore, vests in the Gram Panchayat.

The petitioneRs.next argument that as the land, in dispute, is recorded as “Banjar Qadim”.

in jamabandis for the years 1942-43, 1948-49 and 1960-61, it is excluded from “Shamilat Deh”., cannot be considered, much less, accepted.

A perusal of orders passed by the Collector and the Commissioner reveal that no such plea was raised, whether in reply to the application under Section 11 of the 1961 Act, or during arguments addressed before the Collector or the Appellate Authority.

The plea that the land was “Banjar Qadim”., cannot be allowed to be raised for the fiRs.time in proceedings under Article 226 of the Constitution of India.

Even otherwise, a perusal of the Wazib-Ul-Arz (Annexure P-13 in Civil Writ Petition No.13700 of 1999).reveals that “Banjar Qadim”.

land shall be used as a grazing Civil Writ Petition No.13700 o”

10. ground (a common purpose).A relevant extract from the Wazib-Ul- Arz, (a part of the record of rights of an estate) appended by the petitioner (in Civil Writ Petition No.13700 of 1999).reads as follows: S.No Purpose Custom of the area Report Report ACO 1 Land Total Area of shamilat Shamilat deh 885-4 detailed and its banjar qadim 843.0 gair cultivation mumkin in 42-4 area Management gairmumkin refae is and meant for common management public and land banjar of bore and qadim is meant for its income jumla residents way.

because their cattles grazing.

ii XX XX XX iii The shamilat land will be partitioned as per law as per share holders of Mundaraja Misal Hakiat and will be taken at that time of partition and in the partition waste land and cultivable land will be kept separate.

iv XX XX XX v.

Rakba shamilat Deh.

Every one can sow trees and none other will have any right on that.

If for any reason the tree falls, the price of the same will be distributed amongst the owneRs.vi XX XX XX Civil Writ Petition No.13700 o”

11. 2.

Right of There is no specific way Grazing on of grazing in the area of the shamilat shamilat deh Jumla.

land.

Cattles are grazing and no charge for grazing is being taken (2) After harvesting of the crop for 3-4 days, the cattles can be grazed and every resident can graze his cattle.

No charge will be taken from them.

(3) In the land cattles can graze but with the consent of Malkan.

3 XX XX XX XX XX 4 XX XX XX XX XX 5 XX XX XX XX XX 6 XX XX XX XX XX The petitioner's plea that the Wazib-Ul-Arz contains a clause that “Shamilat Deh”.

will be partitioned amongst proprietORS.is qualified by the other clauses of the Wazib-Ul-Arz, and necessarily refers to only such shamilat land as was cultivable.

The Wazib-Ul-Arz also provides that “Shamilat Deh”., whether cultivated or not, can be used for grazing of cattle, thereby clearly indicating that Shamilat Deh, even though cultivable/cultivated, is used for grazing of cattle, i.e., a common purpose.

The Shamilat land, which was, admittedly, “Banjar Qadim”., could, therefore, be used, as per the Wazib-Ul-Arz, for grazing of cattle, by inhabitants of the village and is, therefore, included in “Shamilat Deh”.

and consequently, vests in the Gram Panchayat.

In view of what has been stated hereinabove, the Civil Writ Petition No.13700 o”

12. impugned orders are affirmed and both writ petitions are dismissed.

( RAJIVE BHALLA ) JUDGE 20 h December, 2012 ( REKHA MITTAL) JUDGE VK