Punjab-Haryana High Court
Balwinder Singh vs Joint Development Commissioner (Ird) on 17 September, 2009
Author: S.S.Saron
Bench: S.S.Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP 9032 of 2005
Date of decision: 17.9.2009
Balwinder Singh ....Petitioner
Vs
Joint Development Commissioner (IRD), Punjab,
Sector 22, Chandigarh (Exercising the Powers of
Commissioner) and ors ....Respondents
...
CWP 9034 of 2005
Baljit Kumar ....Petitioner
Vs
Joint Development Commissioner (IRD), Punjab,
Sector 22, Chandigarh (Exercising the Powers of
Commissioner) and ors ....Respondents
...
CWP 7447 of 2005
Kashmir Singh and anr ....Petitioners
Vs
Joint Development Commissioner (Exercising the
Powers of Commissioner) Punjab, Chandigarh and ors
....
Respondents
...
CWP 10604 of 2005
Smt Charanjit Kaur ....Petitioner
Vs
Joint Development Commissioner (Exercising the
Powers of Commissioner) Punjab, Chandigarh and ors ....Respondents
...
CWP 9032 of 2005 2
CWP 10774 of 2005
Ajaib Singh ....Petitioner
Vs
Joint Development Commissioner (Exercising the
Powers of Commissioner) Punjab, Chandigarh and ors ....Respondents
...
Present: Mr Vikas Bahl, Advocate for the petitioners in
CWPs 9032 and 9034 of 2005.
Mr Umesh Kumar Kanwar, Advocate for
Mr RS Chauhan, Advocate for the petitioners in
CWPs 7447, 10774 and 10604 of 2005.
Mr HS Gill, DAG Punjab for the State.
Mr BS Bal, Advocate for respondent-3 Gram Panchayat
Mirzapur.
S.S.SARON, J.
This order will dispose of CWPs 7447, 9032, 9034, 10604 and 10774 of 2005 as they relate to common questions of law and facts. CWP 9032 of 2005 Petitioner - Balwinder Singh seeks quashing of the order dated 12.1.2005 (P6) passed by the Commissioner/Joint Development Commissioner, IRD Punjab (respondent-1) whereby the appeal filed by the petitioner against the order dated 14.11.2000 (P4) passed by the Collector/DDPO (respondent-2) has been dismissed. A further prayer has been made for quashing the order dated 14.11.2000 (P4) passed by the Collector/DDPO ordering the eviction of the petitioner from the land in dispute.
The petitioner is a resident of village Mirzapur. The case of the petitioner is that he is in possession of land measuring 15 Kanals 2 Marlas CWP 9032 of 2005 3 comprised in Khasra Nos.13//16 (8-0) and 17 (7-2) which is the land of the proprietors of the village. The said land adjoins the other land of the petitioner measuring 32 Kanals. The land claimed by the petitioner is recorded in the revenue records as 'Sailab'. Besides, it has never been used for common purposes. In the Jamabandi for the year 1994-95, the aforesaid land in the column of ownership is recorded as 'Shamlat Deh Hasab Rasad Khewat' and is in the occupation of the petitioner. It is recorded as 'Sailab'. It is submitted that the Gram Panchayat has no right to possession of the said land.
CWP 9034 of 2005 Petitioner - Baljit Kumar seeks quashing of the order dated 12.1.2005 (P7) passed by the Commissioner/Joint Development Commissioner, IRD Punjab (respondent-1) vide which the appeal of the petitioner against the order dated 14.11.2000 (P3) passed by the Collector/DDPO, has been dismissed.
The case of the petitioner is that land measuring 33 Kanals 12 Marlas comprised in Khasra Nos.13//20 and 21; Khasra No. 24//11 and Khasra Nos.25//5 and 6 belongs to the proprietors of the village and is in possession of the petitioner. The said land adjoins the other land of the petitioner and in the ownership of the proprietors of the village. The said land, it is stated, is 'Sailab' and after much effort, has been made cultivable by the petitioner. In the Jamabandi for the year 1994-95 (P1), it is recorded in the column of ownership as 'Shamlat Deh Hasab Rasad Khewat'. Besides, the petitioner is recorded in possession of the said land. The land in Khasra Nos.13//20 and 21 is recorded as 'Sailab'. Besides, it has never been used for common purposes.
CWP 9032 of 2005 4CWP 7447 of 2005 Petitioners - Kashmir Singh and Lakhwinder Singh sons of Joginder Singh seek quashing of order dated 24.4.2000 (P3) passed by the Collector/DDPO, Nawanshahr (respondent-2) and the order dated 12.1.2005 (P7) passed by the Commissioner/Joint Development Commissioner, Punjab (respondent-1).
It is alleged that Joginder Singh - father of the petitioners was in possession of land measuring 37 Kanals 6 Marlas, comprised in Khasra No. 13//18 (7-2), 19 (7-2), 20 (7-2), 21 (8-0) and 22 (8-0) as detailed in para 2 of the petition. The Gram Panchayat tried to forcibly dispossess said Joginder Singh, which led to the filing of a suit for permanent injunction against Gram Panchayat, Mirzapur (respondent-3). The learned Sub Judge IInd Class, Nawanshahr decreed the suit of Joginder Singh vide judgment and decree dated 7.4.1993 (P1). The Gram Panchayat, Mirzapur filed an application seeking ejectment of Joginder Singh from land measuring 15 Kanals 2 Marlas comprised in Khasra Nos.13//19 (7-2) and 22 (8-0) as per Jamabandi for the year 1994-95. Joginder Singh - father of petitioners died in 1998, but the DDPO passed order dated 24.4.2000 (P1) against Joginder Singh. The petitioners filed appeal (P5) along with an application (P4) seeking condonation of delay was dismissed vide order dated 12.1.2005 (P7). In the Jamabandi for the year 1999-2000 (P2), the land comprised in Khasra Nos.13//19 (7-2) and 22 (8-0) is recorded as 'Shamlat Deh Hasab Rasad Khewat'. The type of the land is recorded as 'Nadi' (stream) and Joginder Singh is recorded in possession as 'Gair Marusi'. CWP 10604 of 2005 Petitioner - Charanjit Kaur seeks quashing of order dated 14.11.2000 (P2) passed by the Collector/DDPO (respondent-2) Nawanshahr CWP 9032 of 2005 5 and the order dated 12.1.2005 (P5) passed by the Commissioner/Joint Development Commissioner (respondent-1). It is stated that the petitioner has been in established and continuous possession of land measuring 61 Kanals 18Marlas comprised in Khasra Nos.24//12 (8-0), 13 (8-0), 14 (8-0), 15 (8-0), 16 (8-0), 17 (8-0), 18 (8-0) and 19 (5-18) as detailed in para 2 of the petition. The Gram Panchayat, Mirzapur, sought ejectment of Mohinder Singh son of Mansa Singh from the land in question which was duly contested by Mohinder Singh. It was contended that the land in question did not vest in the Gram Panchayat and, therefore, its application seeking ejectment was not maintainable. It is submitted that the petitioner was not a party to the proceedings before the Collector and, therefore, she had no knowledge about the ejectment order dated 14.11.2000 (P2). It is also stated that in fact the Gram Panchayat, Mirzapur (respondent-3) itself made a statement that the Panchayat has no objection if the entries recorded in the name of the petitioner and the application filed by the petitioner before the Naib Tehsildar-cum-Assistant Collector IInd Grade, Nawanshahr for correcting the entries in the revenue records in her favour, were ordered to be corrected w.e.f. Kharif 2002 as per order dated 28.4.2003 (P1). After passing of the order dated 14.11.2000 (P2) by the Collector (respondent-2), warrants of possession were issued. Thereafter, the petitioner filed an appeal before the Commissioner (respondent-1) along with an application under Section 5 of the Limitation Act seeking condonation of delay. It is submitted that the petitioner was never served in the proceedings and she came to know about the same when the warrants of possession had been issued. It is further submitted that the petitioner was not heard and the Commissioner (respondent-1) by a cryptic and injudicious manner had passed the order dated 12.1.2005 (P5). The Gram Panchayat, Mirzapur had CWP 9032 of 2005 6 filed an application dated 16.11.1995 for eviction against Balwinder Singh son of Joginder Singh of village Mirzapur, seeking his eviction from land measuring 15 Kanals 9 Marlas comprised in Khasra Nos.13//16(8-0) and 17 (7-9), as shown in the Jamabandi for the year 1989-90 in the area of Mirzapur, Tehsil Nawanshahr.
CWP 10774 of 2005 Petitioner - Ajaib Singh seeks quashing of order dated 14.11.2000 (P2) passed by the Collector/DDPO, Nawanshahr (respondent-
2) and the order dated 12.1.2005 passed by the Commissioner/Joint Development Commissioner, Punjab (respondent-1).
It is claimed that the petitioner has been in established and continuous possession of land measuring 61 Kanals 18 Marlas comprised in Khasra Nos. 24//12 (8-0), 13 (8-0), 14 (8-0), 15 (8-0), 16 (8-0), 17 (8-0), 18 (8-0) and 19 (5-18) as detailed in para 2 of the petition. The Assistant Collector IInd Grade, Nawanshahr, it is submitted, after visiting the spot and recording the statements of the respectables of the village as well as Gram Panchayat, Mirzapur, ordered correction of the entries in favour of the petitioner in terms of order dated 28.4.2003 (P3). The Gram Panchayat, Mirzapur, on 19.11.1995 filed an application against Mohinder Singh son of Mansa Singh for eviction from land measuring 45 Kanals 2 Marlas comprised in Khewat No.89 Khatauni No.186 Khasra Nos.24//17 (8-0), 18 (8-0), 19 (5-18), 23 (7-4), 24 (8-0) and 25 (8-0), as shown in the Jamabandi for the year 1989-90 situated in village Mirzapur, Tehsil Nawanshahr. It is submitted that the petitioner had no knowledge of the order of ejectment dated 14.11.2000 (P2). However, in consequence of the same warrants of possession were issued. On the issuance of the warrants, the petitioner came to know of the said order dated 14.11.2000 (P2). Thereafter, the petitioner CWP 9032 of 2005 7 filed an appeal (P4) along with an application (P3) seeking condonation of delay which have been dismissed vide impugned order dated 12.11.2005 (P5), which are assailed in the present petition.
On notice, replies have been filed in all the cases by the Gram Panchayat, Mirzapur (respondent-3).
In CWP 9032 of 2005, it is stated that the Gram Panchayat, Mirzapur, is owner in possession of the land in dispute. The brother of the petitioner - Balwinder Singh namely Balvir Singh had taken the Panchayat land on lease from the Gram Panchayat in the year 1992-93. Thereafter, the petitioner in connivance with his brother had encroached upon the Panchayat land. After the expiry of the lease period, the petitioner Balwinder Singh and his brother - Balvir Singh were requested by the Gram Panchayat to vacate the land but they refused to do so. The Gram Panchayat then filed an ejectment petition seeking eviction of the petitioner from the land in their occupation. After issuance of notice, the petitioner had appeared in the case and filed reply but inspite of number of opportunities that he availed, he did not produce evidence in support of his case. Accordingly, an order of eviction dated 14.11.2000 was passed against the petitioner - Balwinder Singh. After a gap of more than 3 years and 6 months, the petitioner filed an appeal before the Commissioner, which has been dismissed vide impugned order dated 12.1.2005. After passing of the order of eviction dated 14.11.2000, the Gram Panchayat had taken possession of the land from the petitioner as per proceedings (R1) recorded in the Roznamcha. Thereafter, the land had been leased out on 17.6.2005 (R2). The petitioner has filed replication to the written statement denying the averments made in the written statement and reiterated those made in the writ petition.
CWP 9032 of 2005 8
In CWP 9034 of 2005, the Gram Panchayat, Mirzapur has stated that Joginder Singh had taken the Panchayat land from the Gram Panchayat, Mirzapur in the year 1992-93. The petitioner had encroached upon the Panchayat land in connivance with said Joginder Singh. After expiry of the lease period when the Gram Panchayat requested the petitioner to hand-over possession, the petitioner flatly refused to vacate the possession of the Panchayat land. Then the Gram Panchayat filed an application for ejectment against the petitioner. After issuance of notice, the petitioner appeared and filed reply but inspite of availing number of opportunities, he did not produce any evidence in support of his claim. Accordingly, an order of eviction dated 14.11.2000 was passed against the petitioner. Against the order of eviction, the petitioner - Baljit Kumar filed an appeal, which has been dismissed vide order dated 12.1.2005 as it was barred by 3 years and 6 months, for which there was no sufficient explanation. It is also submitted that after passing of the order of eviction on 14.11.2000, the Gram Panchayat has taken possession of the land from the petitioner in pursuance of the proceedings (R1) recorded in the Roznamcha. Thereafter the land has been further leased out on 17.6.2006 (R2).
In CWP 7447 of 2005, reply has been filed by the Joint Director, Rural Development and Panchayats on behalf of respondent-2. It is stated that the Gram Panchayat, Mirzapur had field a petition against Joginder Singh (father of the petitioners - Kashmir Singh and Lakhwinder Singh) and his brothers namely Balwinder Singh, Balbir Singh, Kashmir Singh and Kuldip Singh. It is submitted that the petitioners were present at the time of passing the order dated 24.4.2000 (P3) by the Collector/DDPO. However, they did not disclose about the death of their father - Joginder Singh at the time of passing the said order. Besides, it is submitted that the CWP 9032 of 2005 9 Gram Panchayat, Mirzapur has taken possession of the land in dispute and the said land had been auctioned continuously by the Gram Panchayat after taking possession. The Girdawaris have been entered in the name of the Gram Panchayat. The Gram Panchayat had taken possession of 50 acres 2 kanals of land through Police on 10.6.2005 from the petitioners in the presence of respectables for complying with the order of the Collector. After taking over the possession, the Gram Panchayat has further auctioned the land. The possession has been handed over to the bidders and they are cultivating the land.
A separate reply has been filed by the Gram Panchayat (respondent-3), in which it is stated that father of the petitioners i.e. Joginder Singh had taken the Panchayat land on lease vide resolution dated 8.6.1992 (R1). After the expiry of the lease, the father of the petitioners refused to give the possession of the land to the Panchayat. Therefore, an application was filed seeking his eviction. Notice was issued to Joginder Singh - father of the petitioners and he put in appearance through his counsel, who had been appearing regularly. On 28.5.1997, the case was fixed for filing reply on behalf of the petitioners. Thereafter, order of eviction dated 24.4.2000 was passed after affording proper opportunity to the petitioners. Against the order of eviction, the petitioners, their brother and their father filed an appeal before the Commissioner, who dismissed the same vide order dated 12.1.2005 as there was delay of more than 3 years and 6 months in some cases and in other cases there was a delay of more than 4 years. It is stated that the petitioners did not inform the authorities about the death of their father, who died on 17.3.1998.
In CWP 10604 of 2005, the Gram Panchayat, Mirzapur has filed reply, in which it is stated that Charanjit Kaur - petitioner has no locus CWP 9032 of 2005 10 standi to file the writ petition as she is neither an aggrieved party nor any order has been passed against her. The order of eviction dated 14.11.2000 has been passed by the Collector against Balwinder Singh son of Joginder Singh. The petitioner had purchased the land in question from said Balwinder Singh. Such a transaction of sale, it is stated, is quite illegal for which suitable action is liable to be taken against the petitioner Charanjit Kaur as also the seller who sold the land. It is stated that the petitioner Charanjit Kaur was not a party before the Collector and, therefore, the appeal filed by her against the order dated 14.11.2000 of her eviction was not maintainable. The Panchayat is the owner of land in dispute which was taken on lease by Balvir Singh son of Joginder Singh. Balwinder Singh, who is the brother of said Balvir Singh, did not return the possession of the land to the Panchayat. Then a petition for eviction of the occupants was filed by the Gram Panchayat. After issuing of notice, the respondents in the eviction application appeared and filed their reply but despite availing a number of opportunities, no evidence was produced by them in support of their claim. This showed that Balwinder Singh - respondent in the eviction petition was not interested in pursuing the case. Accordingly, an order of eviction was passed against Balwinder Singh son of Joginder Singh on 14.11.2000. The petitioner is the purchaser of land from said Balwinder Singh. After the order of eviction, the petitioner filed an appeal before the Commissioner/Joint Development Commissioner, which was dismissed as the same had been filed after a gap of more than 3 years and 6 months.
In CWP 10774 of 2005, reply has been filed by the Gram Panchayat, in which it is stated that the petitioner -Ajaib Singh has no locus standi to file the petition as he was not an aggrieved party before the Collector/DDPO, Nawanshahr. The order of eviction passed on 14.11.2000 CWP 9032 of 2005 11 is against Mohinder Singh son of Mansa Singh. The petitioner had purchased the land from Mohinder Singh son of Mansa Singh. The transaction of sale, it is submitted, is quite illegal, which warrants a suitable action against the petitioner. The Gram Panchayat is the owner of the land in dispute which was taken on lease by Joginder Singh in 1992-93. Said Joginder Singh in connivance with Mohinder Singh son of Mansa Singh established his illegal possession and refused to give possession of the land in dispute after expiry of the lease period. On account of his refusal to give back the possession of the land in question, the Gram Panchayat filed an application seeking his eviction. The petitioner - Ajaib Singh was not a party before the lower Court. However, Mohinder Singh son of Mansa Singh, was a respondent in the application for eviction. He had appeared and filed his reply. Thereafter, inspite of a number of opportunities, he did not produce any evidence in support of his claim, which showed that Mohinder Singh was no more interested to pursue the case. Accordingly, an order of eviction was passed against Mohinder Singh son of Mansa Singh. After the passing of the order of eviction, the petitioner filed an appeal before the Commissioner/Joint Development Commissioner, which was dismissed being barred by 3 years and 6 months. Besides, after the order of eviction had been passed on 14.11.2000, the possession of the land had been taken by the Gram Panchayat in pursuance of the proceedings (R1) recorded in the Roznamcha. Thereafter, the Gram Panchayat, Mirzapur had further leased out the land in question on 17.6.2005 (R2). Satnam Singh, Panch, who had given statement in favour of the petitioner during the proceedings of correction of entries in the Khasra Girdawari, it is stated, had no authority on behalf of the Gram Panchayat to give such a statement which shows the connivance of the Panchayat members with the petitioner. CWP 9032 of 2005 12
The position, therefore, is that in all the cases, the Gram Panchayat, Mirzapur (respondent-3) filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act 1961 (1961 Act - for short) seeking eviction of the occupants on the land of the Gram Panchayat. Petitioner - Balwinder Singh in CWP 9032 of 2005 claimed that he is in possession of the Panchayat land which belongs to the proprietors of the village and as such does not vest in the Gram Panchayat. According to the Gram Panchayat, Balvir Singh is a brother of the petitioner who had taken the Panchayat land on lease in the year 1992-93 and thereafter, in connivance with Balwinder Singh - petitioner had encroached upon the Panchayat land. Petitioner - Baljit Kumar in CWP 9034 of 2005 also claims occupation to the Panchayat land. It is stated that the land does not vest in the Panchayat and belongs to the village proprietary body. According to the Gram Panchayat, Joginder Singh had taken the Panchayat land on lease in the year 1992 and the petitioner - Baljit Kumar had encroached upon the land in connivance with said Joginder Singh. Petitioners - Kashmir Singh and Lakhwinder Singh sons of Joginder Singh in CWP 7447of 2005, stated that they are in occupation of the land and they were not liable to be evicted. According to the Gram Panchayat, Mirzapur, the land was given on lease to Joginder Singh (father of the petitioners - Kashmir Singh and Lakhwinder Singh) and after the expiry of the lease period, they had refused to give back the possession of the Panchayat land to the Gram Panchayat. Therefore, an application under Section 7 of the 1961 Act was filed, in which order of eviction has rightly been passed in favour of the Gram Panchayat. Petitioner
- Charanjit Kaur in CWP 10604 of 2005 was not a party before the Collector/DDPO, Nawanshahr. The land in the said case had been given on lease to Balvir Singh son of Joginder Singh in the year 1992-93. Said Balvir CWP 9032 of 2005 13 Singh in connivance with his brother - Balwinder Singh established illegal possession of Balwinder Singh. When Balwinder Singh refused to give back the possession of the Panchayat land to the Gram Panchayat, then a petition under Section 7 of the 1961 Act was filed by the Gram Panchayat. Charanjit Kaur - petitioner, it is stated had purchased the land in question from said Balwinder Singh son of Joginder Singh. Said sale transaction, it is alleged, is quite illegal. Petitioner - Ajaib Singh in CWP 10774 of 2005 is also a purchaser of land from Mohinder Singh son of Mansa Singh. A petition for eviction was filed against said Mohinder Singh. The land in dispute was taken on lease by Joginder Singh in 1992-93. Mohinder Singh son of Mansa Singh in connivance with Joginder Singh established his illegal possession and refused to give back possession of the Panchayat land to the Gram Panchayat after the expiry of the lease period. Therefore, a petition for eviction had been filed.
Mr Vikas Bahl, Advocate appearing for the petitioner in CWP Nos.9032 and 9034 of 2005 has submitted that the land in question is recorded in the revenue records as 'Shamlat Deh Hasab Rasad Khewat' and as such the land does not vest in the Gram Panchayat. Therefore, the Gram Panchayat had no locus standi to evict the petitioners in the said petitions from the land in dispute. In support of his contention, the learned counsel cites Gram Panchayat village Bhedpura, Tehsil & Distt Patiala v. Additional Director, Consolidation, Punjab 1997 (1) PLJ 535 (DB) (P&H), Joginder Singh and ors v. The Director, Consolidation of Holdings, Punjab and ors 1988 PLJ 535 (DB) (P&H), Mela Vijay Dashmi Sabha v. Amar Nath and anr 1995 (3) RRR 584 (P&H), Gurjant Singh v. Commissioner, Ferozepur Division 2000 (2) RCR (Civil) 437 (DB) (P&H), State of Punjab v. Gurjant Singh and ors 2002 (2) PLJ 438 CWP 9032 of 2005 14 (SC), Kala Singh v. Commissioner, Hissar Division and ors 1984 PLJ 169 (DB) (P&H) and Jagir Singh v. State of Punjab 1994 (1) PLR 521 (DB) (P&H).
Mr Omesh Kumar Kanwar, Advocate appearing in CWP Nos.7447, 10604 and 10774 of 2005 has contended that an order of injunction had been passed by the civil Court in favour of Joginder Singh, (father of petitioners - Kashmir Singh and Lakhwinder Singh in CWP 7447 of 2005). Therefore, the said petitioners were not liable to be evicted in view of the injunction order. It is submitted that once the civil Court had protected the rights of the father of the petitioners, they are not liable to be evicted. It is also submitted that the appellate authority i.e. the Commissioner under the 1961 Act erred in dismissing the appeal of the petitioners in the said three petitions only on the ground of limitation which were liable to be considered on merit.
Mr HS Gill learned Deputy Advocate General Punjab appearing for the State has submitted that the orders passed by the authorities under the 1961 Act are just and proper orders and do not warrant any interference. Mr BS Bali, Advocate, learned counsel for the respondent Gram Panchayat, Mirzapur has submitted that the petitioners are not entitled to seek the setting aside of the orders of their eviction as they were given possession of the land on lease and after having taken possession of the land on lease, they are, therefore, estopped from denying the title of the lesser. It is also submitted that the land, of which eviction is sought, is recorded as 'Shamlat Deh' and merely because it is recorded as 'Hasab Rasad Khewat' after 'Shamlat Deh', would not affect the rights of the Panchayat to the ownership of the said land. Besides, it is submitted that the appeal filed by the petitioners was barred by time in some cases by 3 years CWP 9032 of 2005 15 and 6 months and the same have rightly been dismissed by the Commissioner under the Act. It is also submitted that possession of the land had been taken by the Gram Panchayat in consequence of the order of eviction. In fact, possession of 50 acres of the Panchayat land was taken by the Gram Panchayat with Police help on 10.6.2005.
I have given my thoughtful consideration to the contentions of the learned counsel for the parties and also gone through the records of the cases.
The petitioners or their predecessors-in-interest in the respective petitions had initially taken the land in question on lease from the Gram Panchayat, Mirzapur in the year 1992-93. The petitioner - Charanjit Kaur in CWP 10604 of 2005 and petitioner - Ajaib Singh in CWP 10774 of 2005 are subsequent purchasers of the Panchayat land from Balwinder Singh son of Joginder Singh and Mohinder Singh son of Mansa Singh respectively. The land in the case petitioner - Charanjit Kaur in CWP 10604 of 2005 was taken on lease by Joginder Singh. The land in the case petitioner - Ajaib Singh in CWP 10774 of 2005 was taken on lease by Mohinder Singh. It is not disputed that in the revenue records, the land that was purchased is recorded in the revenue records as 'Shamlat Deh Hasab Rasad Khewat'. Therefore, the question that is to be seen is whether such land vests in the Gram Panchayat. Besides, what is the effect of the dismissal of the appeal by the Commissioner on account of delay and what are the rights of Charanjit Kaur and Ajaib Singh in CWP Nos.10604 and 10774 of 2005, respectively.
As regards the vesting of the land in favour of Gram Panchayat; as has already been noticed, the land is recorded in the revenue CWP 9032 of 2005 16 records as 'Shamlat Deh' excluding 'Abadi Deh'. Section 2(g) of the 1961 Act reads as under:-
"2(g) - 'Shamlat deh' includes -
(1) lands described in the revenue records as shamlat deh excluding abadi deh;
(2) shamlat tikkas;
(3) lands described in the revenue records as shamlat, tarafs, patties, pannas and tholas and used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village; (4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds within abadi deh or gorah deh;
and (5) lands in any village described as banjar qadim and used for common purposes of the village according to revenue records;
(i) [-]
but does not include land which -
[-]
(ii) has been allotted on quasi-permanent basis to a
displaced person;
(ii-a) was shamlat deh, but, has been allotted on quasi-
permanent basis to a displaced person, or, has been otherwise transferred to any person by sale or by any other manner whatsoever after the CWP 9032 of 2005 17 commencement of this Act, but on or before the 9th day of July, 1985.
(iii) Has been partitioned and brought under cultivation by individual land holders before the 26th January, 1950;
(iv) Having been acquired before the 26th January, 1950, by a person by purchase or in exchange for proprietary land from a co-sharer in the shamlat deh is so recorded in the jamabandi or is supported by a valid deed and is not in excess of the share of the co-sharer in the shamlat deh;
(v) Is described in the revenue records as shamlat taraf, patties, pannas and thola and not used according to revenue records for the benefit of the village community or a part thereof or for common purposes of the village;
(vi) Lies outside the abadi deh and was being used as gitwar, bara, manure pit, a house or for cottage industry immediately before the commencement of this Act;
(vii) [******]
(viii) was ahamlat 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 shamlat deh on or before the 26th January 1950; or CWP 9032 of 2005 18
(ix) was being used as a place of worship or for purposes subservient thereto immediately before the commencement of this Act.
The contention of Mr Vikas Bahl, Advocate, learned counsel for the petitioners Balwinder Singh and Baljit Kumar in CWPs 9032 and 9034 of 2005 respectively is that since the land is recorded as 'Hasab Rasad Khewat' after the words 'Shamlat Deh', the same would not vest in the Gram Panchayat. The said contention, however, is devoid of any merit. It may be noticed that the term 'Hasab Rasad Khewat' in fact means according to the share of the 'Khewatdars' (Proprietors) of the village in their respective holdings in land would have share in the 'Shamlat' land. Therefore, the said term is for the purpose of determining the share of the proprietors in the Shamlat land, which is proportionate to the extent of their share in the holding of the land in the village. The same would be their share in the Shamlat land of the village. The recording of words 'Hasab Rasad Khewat' after the words 'Shamlat Deh' does not in any manner denude or change the character of the land being 'Shamlat Deh' of the village. It only determines the share. There is nothing in Section 2 (g) of the 1961 Act to show or establish that the land which is recorded as 'Shamlat Deh Hasab Rasad Khewat' would not be 'Shamlat Deh' within the meaning of 'Shamlat Deh'. The land which is recorded as 'Shamlat Deh' would vest in the Panchayat in terms of Section 4 of the 1961 Act, which provides for vesting of rights in Panchayats and non-proprietors. It is provided therein that 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 Shamlat Deh of CWP 9032 of 2005 19 any village and which has not vested in a Panchayat under the Shamlat Law shall, at the commencement of the Act, vest 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 commencement of the Shamlat Law, be deemed to have been vested in such non-proprietor. Therefore, in terms of Section 4 (1) (a) of the Act, the land which is included in 'Shamlat Deh' of any village is to vest in a Panchayat constituted for such village. For the land to be 'Shamlat land' the provisions of Section 2 (g) of the 1961 Act are to be seen. Insofar as the entry of 'Hasab Rasad Khewat' is concerned the same, as already noticed, is only for the purpose of determining the share of the right-holders in the Shamlat land and it means according to the share of the holdings of the owners in the estate, would be the share in the 'Shamlat Deh' (village common land).
The judgments cited by Mr Bahl, learned counsel for the petitioners in CWPs No.9032 and 9034 of 2005 may be considered as also the statutory provisions of the 1961 Act.
In Gram Panchayat village Bhedpura (supra), the consolidation authorities imposed a pro-rata cut of land on all the right-holders, which was to be utilized for common purposes of the village. After utilization the land for common purposes, the land which remained unutilized was held to be 'Bachat' land. The 'Bachat' land was mutated in the name of the Gram Panchayat. It was held that the 'Bachat' land is to be re-distributed amongst the land holders according to 'Hasab Rasad Rakba Khewat' which mistake was corrected by the consolidation authorities. Accordingly, a direction CWP 9032 of 2005 20 was given to the Consolidation Officer to re-distribute the 'Bachat' land amongst the land holders according to their share of land in the village. Therefore, the said case relates to re-distribution of the 'Bachat' land left unutilized for common purposes. The 'Bachat' land, as is well known, is the land which though has been taken by the Consolidation Authorities from the land of the proprietors of the village by applying a pro rata cut for common purposes but remains unutilized. The said 'Bachat' land of the proprietors of the village vests in the proprietary body and is to be re- distributed amongst the rights holders as held in Gurjant Singh versus Commissioner Ferozepur Division, Ferozepur (supra).
In Joginder Singh's case (supra), the land in the said case was described in the record of rights prior to consolidation as 'Banjar' or 'Banjar Qadim' in individual cultivating possession of 'Khewatdars' and in the column of cultivation, was recorded in the possession of 'Malkans' (owners). While in the column pertaining to assessment, it was recorded as 'Bila Lagaan Bawajah Kabza Sab Ka Hissedari' (without payment of rent being in possession of all co-sharers). It was held, would not fall within the definition of 'Shamlat Deh' in terms of Section 2 (g). In the said case, the land was 'Banjar' or 'Banjar Qadim'. Insofar as 'Banjar Qadim' land is concerned, for it to vest in 'Shamlat Deh', it must be shown to be used for common purposes in terms of Clause (5) of Section 2 (g), which envisages 'Shamlat Deh' includes lands in any village described as 'Banjar Qadim' and used for common purposes of the village, according to revenue record. In the present case, as already noticed, the land is recorded as 'Shamlat Deh'. There is no mention of land in the present case being mentioned or recorded as 'Banjar' or 'Banjar Qadim'. Therefore, the ratio of the said judgment is inapplicable to the facts of the present case. CWP 9032 of 2005 21
In Mela Vijay Dashmi Sabha's case (supra), the term 'Hasab Rasad Zare Khewat' has been explained. It has been held that it means where the land was carved out during consolidation of holdings and entry in the revenue record reads as 'Hasab Rasad Zare Khewat' and there is no fluctuation of revenue assessment. This entry means according to the area of the holdings or a division in proportion or area. It was held that the share of the proprietors in this joint land is to the ratio of their area in the revenue estate and a person who has not been a proprietor of the village cannot make any claim on this joint land of the proprietors on the basis of terms or breach of terms of 'Wazib-Ul-Arz' between the proprietors. There is no dispute to the said proposition and rather it fortifies the position that the entry 'Hasab Rasad Zare Khewat' is for determining the share of the proprietors according to their share of their holdings in a revenue estate. In other words, the share of the proprietors in the joint land is to the ratio of their land holdings in the revenue estate. Therefore, the term 'Hasab Rasad Khewat' or 'Hasab Rasad Zare Khewat' is the entitlement of the share of the land holdings and where the land is 'Shamlat Deh', the proprietors have their share in the said land to the extent of their holdings in the village. It does not mean that the character of the 'Shamlat Deh' land has changed. The share of the village proprietor in the 'Shamlat Deh' is now inconsequential after the enforcement of the 1961 Act except if it falls within the exclusionary clauses of (iii) to (ix) of Section 2 (g) as reproduced above. Section 2 (g) is in two parts. The first part relates to land which is included in 'Shamlat Deh'. The second part relates to land which is not included in 'Shamlat Deh'. Insofar as share in 'Shamlat Deh' is concerned for it to be excluded from the definition of 'Shamlat Deh' it is to be shown that it is in one of the excluded clauses of Shamlat Deh. Clause CWP 9032 of 2005 22
(iii) of Section 2 (g) for the Shamlat Deh land to be not included in Shamlat Deh, it is required to be shown that had been partitioned and brought under cultivation by individual land holders before 26.01.1950. Therefore, even if a proprietor of land in the village has a share in the 'Shamlat Deh' land would not have any right after coming into the effect the 1961 Act as the said land is to vest in the Gram Panchayat in terms of Section 4 thereof. It is only if it is shown to be in individual cultivating possession of the land holder before 26.01.1950 or it comes within the other exclusionary clauses
(ii) to (ix) of Section 2(g) then it would not be 'Shamlat Deh'. Therefore, the ratio of the judgment in Joginder Singh's case is inapplicable to the present case.
The case of Gurjant Singh (supra), relates to the land which remained unutilized from the land reserved for common purposes, as described in the consolidation scheme. The said land, it was held, does not vest in the Panchayats as the lands like 'Shamlat Deh' under Section 2(g)(3) of the Act. In the said case, the question involved for adjudication was whether the 'Bachat' land i.e. the land found surplus after utilization for common purposes, vests in the Gram Panchayat or continues to be owned by the proprietors of the village. The connected question that was considered was whether the land which is shown in the revenue records as 'Bachat' land, can be transferred in favour of the Gram Panchayat by making a simple mutation. It may be noticed that a scheme of consolidation is framed under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (1948 Act - for short), by the consolidation authorities in respect of land that is to be consolidated for preventing fragmentation. The consolidation scheme inter alias requires the consolidation authorities to also reserve or ear mark land or common CWP 9032 of 2005 23 purposes of the village. The land for common purposes is reserved or ear marked by imposing a pro rata cut on the land of the proprietors to the extent of their land holdings in the village. The definition of 'common land' is provided for in clauses (bb) of Section 2 of the 1948 Act. After utilization of the land for common purposes, the land which is left unutilized from the land for common purposes is 'Bachat' land. The said land is to go to the proprietors of the village in accordance with their contributions initially made by imposing a pro rata cut. However, in case the contribution is made of the Shamlat Deh' land, it is to vest in the Gram Panchayat because 'Shamlat Deh' land in terms of Section 4(1) (a) of the 1961 Act vests in the Panchayat. The management and control of the land taken for common purposes under a consolidation scheme also vests in the Panchayat under Section 23-A of the 1948 Act. Therefore, the ratio of the judgment in Gurjant Singh's case (supra) which deals with the 'Bachat' land i.e. the land though reserved or common purposes but remains unutilised, is inapplicable to the facts of the present case in which the land is recorded in the revenue record as 'Shamlat Deh'. The ratio of the Division Bench judgment of this Court in Gurjant Singh's case (supra) was affirmed by the Supreme Court. However, the directions given in the judgment regarding re-distribution of the 'Bachat' land to be carried out expeditiously was deleted.
In the case of Kala Singh (supra), the plea raised in the said case was that the land did not vest in the Gram Panchayat as the land was reserved for income of the Gram Panchayat during consolidation proceedings. It was held that such land, in view of the judgment of the Supreme Court in Bhagat Ram and another v. State of Punjab 1967 PLR 287 (Five Judges) vests in the proprietary body and does not vest in the CWP 9032 of 2005 24 Gram Panchayat. There is no dispute to the said proposition. In view of Bhagat Ram's case (supra), the land of the proprietary body, if it is reserved for income of the Gram Panchayat, cannot be said to be for common purposes of the village. However, in the present case, the land is 'Shamlat Deh' and the land of the proprietary body has not been taken or reserved for common purposes.
In Jagir Singh's case (supra), the case was remanded as the Collector and the Commissioner under the Act did not record a finding that the disputed land was 'Shamlat Deh' and vested in the Panchayat. Therefore, the ratio of the said judgment is also inapplicable to the facts of the present case.
The position, therefore, it may be reiterated, is that the land which is recorded in the revenue record as 'Shamlat Deh' is 'Shamlat Deh' within the meaning of Section 2 (g) of 1961 Act and the same in view of Section 4(1) (a) of the 1961 Act vests in the Gram Panchayat where such Panchayat has been constituted and where it has not been so constituted, shall vest on the date when the Gram Panchayat is so constituted. The fact that the word 'Shamlat Deh' is succeeded by 'Hasab Rasad Khewat' only means that where there is no fluctuation of revenue assessment, the proprietors of the village would have share in the 'Shamlat Deh' according to their share of their land holdings in the village. The share in the land holdings, however, does not efface the character of the land from not being 'Shamlat Deh'. Besides, now the share in the Shamlat Deh land means nothing much unless it is excluded from Shamlat Deh under Sections (ii) to
(ix) of Section 2 (g). In terms of Clause (iii) of Section 2(g) for the land to be excluded from 'Shamlat Deh', it should have been partitioned and brought under cultivation by individual land owners before 26.1.1950. CWP 9032 of 2005 25 Section 2(g) is in two parts. Clauses 1 to 5 provide for lands which are included within the definition of 'Shamlat Deh' and Clauses (ii) to (ix) provide for lands which are not included in 'Shamlat Deh'. For the land in question, which is recorded as Shamlat Deh land for it to come out of 'Shamlat Deh', it is liable to be shown that the land had been partitioned and brought under cultivation by individual land owners before 26.1.1950, which is not the case herein. In fact even in the Jamabandis for the year 1954-55, the land continues to be recorded as 'Shamlat Deh Hasab Rasad Khewat'. Even otherwise, it may be noticed that the occupants of the land had initially taken the land on lease and thereafter they continued in occupation. As such, they are estopped from denying the title as lesser in view of Section 116 of the Indian Evidence Act.
Keeping in view the facts and circumstances that the petitioners have no right to the land which is 'Shamlat Deh' and vests in the Gram Panchayat, the mere fact that their appeals have been dismissed on the ground of delay and laches, is inconsequential as they are unable to show that they have any right to the land.
As regards the rights of Charanjit Kaur and Ajaib Singh, respective petitioners in CWPs 10604 and 10774 of 2005, it may be noticed that they had purchased the land from persons who had no right in the land. Charanjit Kaur had purchased the land in dispute from Balwinder Singh son of Joginder Singh. In fact, the land was leased out to Balvir Singh son of Joginder Singh and he connived with Balwinder Singh - his brother and put him in possession of the land. The land was sold by Balwinder Singh to Charanjit Kaur. Similarly, Ajaib Singh had purchased the land from Mohinder Singh son of Mansa Singh. In fact, the land in question was taken on lease from the Panchayat by Joginder Singh. Mohinder Singh son of CWP 9032 of 2005 26 Mansa Singh connived with Joginder Singh and came in possession of the land, who then sold it to Ajaib Singh. The sellers of the land namely Balwinder Singh son of Joginder Singh to Charanjit Kaur and Mohinder Singh son of Mansa Singh to Ajaib Singh, in fact had no right whatsoever in the land. Therefore, they could not convey a better title than they themselves had. Therefore, by mere alleged purchases, Charanjit Kaur and Ajaib Singh cannot be said to have any right in the Shamlat Deh land.
For the foregoing reasons, there is no merit in these writ petitions and all the writ petitions are accordingly dismissed.
17.9.2009. ( S.S.SARON ) ASR JUDGE