Punjab-Haryana High Court
Dalbir Chand & Others vs Gram Panchayat Village Rampur Haler & ... on 19 August, 2012
Author: G.S.Sandhawalia
Bench: Jasbir Singh, G.S.Sandhawalia
CWP No.9414 of 2005 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
(1) CWP No.9414 of 2005
Dalbir Chand & others .....Petitioners
Versus
Gram Panchayat Village Rampur Haler & others ......Respondents
(2) CWP No.22357 of 2010
Rai Singh ......Petitioner
Versus
State of Punjab & others .......Respondents
(3) CWP No.9969 of 2012
Ram Dev & another .....Petitioners
Versus
Director, Rural Development & Panchayat, Punjab & others ......Respondents
(4) CWP No.10311 of 2012
Rai Singh .......Petitioner
Versus
Deputy Commissioner-cum-District Collector, Hosiarpur & others
.......Respondents
Date of decision: 19.08.2013
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.G.S.Jaswal, Advocate, for the petitioners
(in CWP No.9414 of 2005).
Ms.Satpreet Grewal, Advocate, for the petitioner
(in CWP Nos.22357 of 2010 & 10311 of 2012).
Mr.Satbir Rathore, Advocate, for the petitioners
(in CWP No.9969 of 2012).
Mr.K.K.Gupta, Addl.A.G., Punjab.
Sailesh Ranjan
2013.08.30 12:41
I attest to the accuracy and
integrity of this document
CWP No.9414 of 2005 -2-
Mr.K.S.Dadwal, Advocate, for respondent No.1.
Mr.Jagdish Manchanda, Advocate, for respondent No.4
(in CWP Nos.22357 of 2010 & 10311 of 2012).
Mr.Hitesh Sood, Advocate, for respondent No.3
(in CWP No.9969 of 2012).
****
G.S.Sandhawalia J.
1. This order shall dispose of CWP Nos.9414 of 2005, 22357 of 2010 and 9969 & 10311 of 2012. Facts and question of law being common, reference has been made to the pleadings in CWP No.9414 of 2005 titled Dalbir Chand & others Vs. Gram Panchayat Village Rampur Haler & others.
2. Challenge in the present writ petition are to the orders dated 20.03.1998 (wrongly mentioned as 27.02.1998) passed by the Collector, Hoshiarpur (Annexure P8) whereby the claim of the petitioners under Section 11 of the Punjab Village Common Lands (Regulations) Act, 1961 (for short, the 'Act') were rejected which order was further upheld by the Commissioner vide order dated 15.12.2004 (Annexure P10).
3. The case set up by the petitioners in their writ petition is that the ancestors of the petitioners were owners of shamilat deh land measuring 724 kanals 2 marlas, comprising in khata No.198/256-307, 308, 366, situated in Village Rampur Haler, Tehsil Dasuya, District Hoshiarpur. The consolidation in the village had taken place in the year 1954-55 and that the proprietors of the shamilat land had agreed to contribute land to the Gram Panchayat and the Gram Panchayat had become owner of the said land on the basis of the statement made by the proprietors before the consolidation authorities. Petitioners filed application dated 31.01.1984 under Section 11 of the Act, laying claim to their shares which was opposed by the Gram Panchayat by filing written statement on 24.07.1984. After taking into account the evidence produced, vide order dated Sailesh Ranjan 2013.08.30 12:41 I attest to the accuracy and integrity of this document CWP No.9414 of 2005 -3- 30.04.1990, the Collector came to the conclusion that the petitioners were in possession of the land in dispute since long before 26.01.1950 and the Gram Panchayat was left with no right on the land in dispute and accordingly, allowed the application. However, the Gram Panchayat, in appeal, was successful before the Commissioner and the matter was remanded for fresh decision on 05.08.1992. Keeping in view the remand order, the Collector dismissed the application on 20.03.1998 and the appeal before the Commissioner also met the same fate on 15.12.2004.
4. Resultantly, the present writ petition has been filed, taking the plea that land was situated within the hilly area and under Section 14A of the Act, the land vests in the Gram Panchayat. Reference was made to the provisions of Sections 3, 4 & 5 of the Punjab Land Preservation Act, 1900 (for short, the 'Preservation Act') and it was pleaded that the proprietors had made statement during consolidation proceedings and the property was transferred in the name of the Gram Panchayat and that it became the owner in possession of the land in dispute. Reference was made to Intekhab produced on record as Exhibit A1 before the authorities and revenue records pertaining to the years 1945-46, 1968- 69 and 1973-74 (Annexures P11 to P13).
5. In the written statement filed by respondent No.1, plea taken was that both the Courts below have concurrently held that the Gram Panchayat was the owner of the property as per the revenue record. The proprietors of the village had given the land to the Gram Panchayat for common purposes and therefore, they had relinquished their right on the disputed land and they had no right to seek declaration and were estopped from filing application under Section 11 of the Act. Nothing has been brought on record to show that the land in dispute was in their possession before 1950, as none of the earlier owners had appeared in the Sailesh Ranjan witness-box. The land was described as gair mumkin khad and no crop had been 2013.08.30 12:41 I attest to the accuracy and integrity of this document CWP No.9414 of 2005 -4- sown in any part of the land in dispute and therefore, no relief could be granted. The khatoni paimaish had not been produced to show as to which land was in possession of the petitioners before consolidation and which land came to them after the consolidation. The revenue record pertaining to the year 1945-46 showed that the land was described as "banjar qadim" and the nature of the land in question was "gair mumkin khad" and situated in the hilly track and no crop had been sown and it was not in cultivable possession and the petitioners failed to prove the possession upon the same before 1950. The income from the hilly area was to be used by the Gram Panchayat for the common purposes and as per the provisions of Section 14A of the Act, land was not exempted from vesting in the Gram Panchayat.
6. In the written statement filed by respondents No.2 & 3, similar plea was taken.
7. Vide order dated 15.07.2010, Learned Single Judge, before whom, the matter was listed, was of the opinion that the question raised was of general importance regarding the interpretation of Sections 2(bb) and 14A of the Act and accordingly, directed that the matter be placed before the Division Bench for its opinion as to whether the "hilly areas" which are described as shamilat deh, would vest in the Gram Panchayat and whether the Gram Panchayat would be entitled to exercise any right or do any act in respect of any land in hilly areas. Thereafter, vide order dated 26.04.2012, the State was impleaded as party through the Secretary, Rural Development and Panchayats and the Secretary, Department of Forests and Conservation. Thereafter, on 11.04.2013, the Division Bench answered the reference by holding that the Gram Panchayat was not prohibited from claiming any right, title or interest in the shamilat deh land which was situated in hilly area or from seeking eviction. Relevant observations made Sailesh Ranjan in order dated 11.04.2013 read as under:
2013.08.30 12:41I attest to the accuracy and integrity of this document CWP No.9414 of 2005 -5-
"We have heard counsel for the parties, considered their arguments for and against their respective stands and perused Sections 2(bb) and 14-A of the 1961 Act which were introduced into the 1961 Act by Amending Act No.19 of 1964 and sub-clauses (i), (iii) and (iv) of Section 2(bb) of the 1961 Act substituted by Punjab Act No.13 of 1965. The question that essentially calls for an answer is whether Section 14-A of the 1961 Act places any impediment on the rights of a Gram Panchayat in the Shamilat Deh of a village, situated in a hilly area. The petitioners, in our considered opinion, have canvassed an extreme proposition that Section 14-A of the 1961 Act prohibits a Gram Panchayat from exercising any right, including the right to seek eviction from Shamilat Deh, situated in a hilly area. The scheme of the 1961 Act and provisions of Sections 2(bb) and 14-A of the 1961 Act do not lend support to the interpretation sought to be canvassed by counsel for the petitioners.
The words and expressions appearing in a statute are to be assigned their ordinary, natural and grammatical meaning by adopting the rule of literal interpretation. A statutory provision may, however, be added to, subtracted from, explained or read down if the words and expressions appearing in a statute are vague, lead to an absurd interpretation, tend to nullify legislative intent or require a degree of explanation.
Section 2(bb) of the 1961 Act, in its present form, defines "hilly areas" by reference to various blocks of the Districts of Gurdaspur, Hoshiarpur and Ropar, in the State of Punjab, but does not contain any provision that may be read to place an impediment on the rights of a Gram Panchayat, in the Shamilat Deh of a village situated in a "hilly area" as Section 2(bb) of the 1961 Act merely defines "hilly area" and nothing more.
Section 14-A of the 1961 Act titled as "Saving"
commences with a non-obstantive clause and postulates that nothing contained in this Act (i.e., the 1961 Act) and the "Shamilat Law" shall affect the rights of the State Government in land that is vested or deemed to have vested in a Panchayat. Sub-Section (b) of Section 14-A of the 1961 Sailesh Ranjan 2013.08.30 12:41 Act provides that the 1961 Act or the "Shamilat Law" shall I attest to the accuracy and integrity of this document CWP No.9414 of 2005 -6- not entitle or deemed to have ever entitled a Panchayat or any other authority, under the 1961 Act or the "Shamilat Law", to exercise any right or to do any act in respect of land in a "hilly area" in contravention of provisions of the Indian Forest Act, 1927, whether or not the land has been declared a protected forest. We are unable to discern any ambiguity or confusion in the language used in Section 14-A of the 1961 Act. The words and expressions appearing in Section 14-A of the 1961 Act, in our considered opinion, are neither vague or absurd and, therefore, have to be assigned their ordinary, natural and literal meaning. Section 14-A of the 1961 does not contain any words or expressions that may be interpreted to prohibit a Gram Panchayat, from exercising rights in Shamilat Deh, as conferred by the 1961 Act, except to the extent that its powers shall not be exercised in contravention of any rights that may have vested in the State Government or in contravention of any provisions of the Indian Forest Act, 1927, whether the said land has or has not been declared a protected forest. The prohibitions enacted by Section 14-A of the 1961 Act do not divest the Gram Panchayat of its rights or place any impediment on the vesting of Shamilat Deh in a Gram Panchayat. Section 14-A of the 1961 Act cannot be read to divest a Gram Panchayat of its rights in Shamilat Deh or its right to seek eviction of unauthorised occupants of Shamilat Deh. A perusal of the objects and reasons reveals that all, that legislature, intended, was to place the aforementioned impediments on the power of a Gram Panchayat and not to divest the Gram Panchayat of its rights conferred by the "Shamilat Law" or the 1961 Act.
The reference is, therefore, answered by holding that Shamilat Deh in a "hilly area" shall vest in a Gram Panchayat, as absolute owner, except to the extent that a Gram Panchayat shall not exercise any right that has already vested in the State Government or in such a manner as to contravene any provision of the Indian Forest Act, 1927. Sections 2(bb) and 14-A of the 1961 Act, do not support the petitioners' argument that the words and expressions appearing in Section 14-A of the 1961 Act, Sailesh Ranjan prohibit a Gram Panchayat from claiming any right, title or 2013.08.30 12:41 I attest to the accuracy and integrity of this document CWP No.9414 of 2005 -7- interest in Shamilat Deh situated in a "hilly area" or to prohibit it from seeking eviction of unauthorised occupants of Shamilat Deh.
The writ petition alongwith connected petitions be set down for hearing on 13.05.2013, before an appropriate Bench."
8. Thereafter, the matter was listed for decision on merits. It was further noted that the land has been notified as a forest and the Preservation Act would be applicable and accordingly, the following order was passed on 20.05.2013:
"The land, in dispute, appears to have been notified as a forest and is subject to provisions of the Punjab Land Preservation Act, 1900. The State of Punjab is directed to examine the record and file an affidavit whether the land, in these writ petitions, was ever declared a forest and whether it is subject to provisions contained in the Punjab Land Preservation Act, 1900.
Adjourned to 03.07.2013.
A copy of this order be placed on the files of connected cases."
9. In response thereto, the Divisional Forest Officer, Dasuya filed affidavit that the entire 1523 acres area of Village Rampur Haler (Had Bast No.639) has been notified giving effect to the 1900 Act. It was further averred that the Supreme Court had passed an order on 12.12.1996 in CWP No.202 of 1995 titled T.N.Godavarman Thirumulkpad Vs. Union of India & others, which required that all State Governments shall identify forest areas by constituting expert committees. As per the directions, the expert committee, constituted by the State, had included the said area as forest area. The said land was referred as a private forest in the annual administrative report of the Forest Department, Government of Punjab and has further been approved by the Ministry of Environment & Forests, Government of India vide its letter dated 22.11.2007 Sailesh Ranjan 2013.08.30 12:41 I attest to the accuracy and integrity of this document CWP No.9414 of 2005 -8- (Annexure R4).
10. Counsel for the petitioners has vehemently submitted that the impugned orders did not take into consideration the statement of AW2, Raghunath Singh wherein it had been stated that they were in possession of the land since 26.01.1950 and even prior to that in the year 1911-12.
11. The order passed by the Collector was challenged on the ground that as per the jamabandi for the year 1945-46, possession was shown in the land which was mentioned as shamilat deh and the nature was banjar qadim/barani. A perusal of the application under Section 11 of the Act would show that title was claimed on the basis that they had possession since ancient times and possession of the applicants did not exceed their share of shamilat deh as compared to their own property and they were owners by way of adverse possession. Relevant paragraphs read as under:
"3. That the possession of the applicants over the property in dispute has been ancient in the passage of time and according to the provisions of the Punjab Village Common Lands (Regulation) Act, also the name of the respondent Gram Panchayat could not be entered in the ownership column as more than 12 years have elapsed since 26.1.1950 as provided in the Punjab Village Common Lands (Regulation) Act for change of ownership in the name of the Gram Panchayat.
4. That in possession of the applicants the property in dispute does not exceed their share of Shamlat Deh of the village as compared to their own property. The applicants have also become owners by way of adverse possession by keeping a long open, peaceful, continuous and hostile possession with the claim of title over the property in dispute."
12. Thus, it is apparent that the claim set up by the petitioners was to bring the land under the exception Clause (viii) of Section 2(g) which defines land which is not shamilat deh land. Clause 2(g)(viii) read as under: Sailesh Ranjan 2013.08.30 12:41 I attest to the accuracy and integrity of this document CWP No.9414 of 2005 -9-
"2(g)(viii):- was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co- sharers not being in excess of their respective shares in such shamilat deh on or before 26th January, 1950"
13. While remanding the matter on 05.08.1992, the Commissioner specifically noticed the stand that the khatoni paimaish had not been produced to show which was the land in possession before the consolidation and which actually came to them after the consolidation. The actual share in the shamilat deh had not been worked out and the share of each claimant had to be worked out and it was to be shown that the land was actually partitioned and the same land remained in possession before 1950 to establish their claim on the land. Accordingly, direction was issued to the Collector to give a finding on the four points.
14. In compliance with the said directions, the Collector framed 4 points and noticed that the applicant had not laid any fresh evidence in any of the issues and none of the earlier owners had appeared in the witness-box to support the case. It was noticed that they were claiming possession by way of adverse possession. Reliance was also placed upon decision dated 02.04.1986, passed by the Addl. Sr. Sub Judge wherein it had been held that the land was gair mumkin khad and was situated in the hilly area and no crop was being sown. A finding was recorded that the plaintiff in collusion with the Patwari, had entered their name in the cultivation column and could not show that they were in possession of the suit land. It was further noticed that the consolidation authorities had not been summoned to connect the old khasra numbers with the new khasra numbers and there was nothing on record to show that the applicant or his ancestors were in possession of the land before the year 1950. It was held while dismissing the application on 20.03.1998 that the mutation in the name of the Gram Panchayat was sanctioned in the consolidation proceedings. On account of that, the land Sailesh Ranjan 2013.08.30 12:41 I attest to the accuracy and integrity of this document CWP No.9414 of 2005 -10- was given to the Panchayat Deh, as per the statement of the Sarpanch of the village and with the consent of the proprietors of the land. The Commissioner, vide order dated 15.12.2004, while dismissing the appeal, came to the following conclusion:
"I have considered the contentions taken in the memoranda of appeals in both the cases and also perused the records of the learned lower court including its impugned orders dated 27.2.1998 and 20.3.1998, in detail. The findings of the learned lower court, vide the impugned orders, essentially emphasize that fact that the contended possession of the appellants since the time of their forefathers has not been established. Assailing the revenue entries without rebutting the same by corroborative evidence cannot be held valid. The appellants, besides, as rightly mentioned by the learned lower court in its impugned order dated 20.3.1998, could not bring any record in respect of sale deed etc., that might have been executed by the earlier owners. Further, it was seen the land in question was being given on lease by the respondent Gram Panchayat which only implies that the income derived from the same is being used for the common purposes. The learned lower court placed reliance on observations made by the judgment dated 2.4.1986 passed by Additional Senior Sub Judge, Dasuya, vide civil suit No.35 of 1986 in case titled as 'Mohinder Singh son of Raghunath Singh Vs. Gram Panchayat', whereby it was mentioned that the land in question falls in 'Gair Mumkin Khad' and is situated in hilly track which means that no crop is being sown on any part of the land and which, further, held that the plaintiff was not in possession of the land in dispute and, as such, the claim of the appellants in each case becomes negated. The learned lower court also refers to the fact that the appellants have failed to produce Khatauni Paimaish, Khatauni Istemal, Naksha Haqdar and Misal Hakiat to connect earlier khasra numbers with the present ones on account of consolidation of holdings. On the other hand, the appellants, during their averments made in memoranda of appeals, sought directions to be given to the Revenue Authorities to submit details on the extent of Shamilat land Sailesh Ranjan 2013.08.30 12:41 I attest to the accuracy and and their share etc. This, in a way, is to shirk their integrity of this document CWP No.9414 of 2005 -11- responsibility to prove their possession and, as such, it demerits consideration. In other words, the appellants have nothing to prove that they have been in possession before 1950. As mentioned in the impugned orders, it came on record that the land in dispute was given by an advisory committee to the Panchayat for use and benefit of village and even the Jamabandi for the year 1954-55 recorded the land as Panchayat Deh. The learned lower court, after considering all the relevant aspects, has rightly passed the impugned orders and I have no reason to differ with the same. Appeals are, thus, without merit.
Appeals, accordingly, are dismissed."
15. In order to get the land excluded from the definition of shamilat deh, it was necessary for the petitioners to show that the land had been assessed to the land revenue and had been in individual cultivating possession of the co-sharers in respective share, on or before 26.01.1950, as per the definition of Section 2(g)
(viii) of the Act. The authorities, under the Act, have noticed that such evidence has not been laid by the petitioners. The onus to lead the same was on the petitioners if they had to succeed in the application under Section 11 of the Act. Once the land itself had been recorded as gair mumkin khad and the plea of Sections 2(bb) & 14A of the Act had also been taken regarding the land in question which has been substantiated by the affidavit filed by the State that the land has been declared as protected forest, it would be apparent that the petitioners were never in cultivating possession of the land in dispute. Nothing has been placed on record to show that any such permission had been taken from the Forest Department regarding cutting of grass and trees to substantiate their possession. Thus, it is apparent that the petitioners have been unable to bring on record sufficient material to prove their ownership on the strength of the exclusion clause under Section 2(g)(viii) of the Act and the orders passed by the authorities under the Act, rejecting their claim, are justified. Sailesh Ranjan 2013.08.30 12:41 I attest to the accuracy and integrity of this document CWP No.9414 of 2005 -12-
16. Even otherwise, in its reference order, the Division Bench has also, now, noticed that the provisions of Section 14A of the Act would not affect the rights of the Gram Panchayat and neither prohibit it from claiming any right or title, as was contended by the petitioners. The nature of the land mainly being banjar qadim/barani and in the form of a khad (gorge) and pertaining to a hilly area, thus, could not be claimed by the petitioners on the ground that they were in cultivating possession of the same, on or before 26.01.1950. There is no scope for interference in the well reasoned orders passed by the authorities, under the Act. Accordingly, all the writ petitions are dismissed.
(G.S.SANDHAWALIA)
JUDGE
19.08.2013 (JASBIR SINGH)
sailesh JUDGE
Sailesh Ranjan
2013.08.30 12:41
I attest to the accuracy and
integrity of this document