Punjab-Haryana High Court
Darshan Singh vs Joint Development Commissioner (Ird) ... on 6 July, 2012
Author: Rakesh Kumar Jain
Bench: Rajive Bhalla, Rakesh Kumar Jain
CWP Nos.7123, 2164, 7120 & 2167 of 2008 [1]
CWP Nos.16729 & 20458 of 2009
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1) CWP No.7123 of 2008
Date of decision:06.07.2012
Darshan Singh ...Petitioner
Versus
Joint Development Commissioner (IRD) and others ...Respondents
(2) CWP No.2164 of 2008
Date of decision:06.07.2012
Darshan Singh ...Petitioner
Versus
Joint Development Commissioner (IRD) and others ...Respondents
(3) CWP No.7120 of 2008
Date of decision:06.07.2012
Kirpal Singh ...Petitioner
Versus
Joint Development Commissioner (IRD) and others ...Respondents
(4) CWP No.2167 of 2008
Date of decision:06.07.2012
Kirpal Singh ...Petitioner
Versus
Joint Development Commissioner (IRD) and others ...Respondents
(5) CWP No.16729 of 2009
Date of decision:06.07.2012
Bir Singh ...Petitioner
Versus
State of Punjab and others ...Respondents
(6) CWP No.20458 of 2009
Date of decision:06.07.2012
Joginder Singh and others ...Petitioner
Versus
State of Punjab and others ...Respondents
CWP Nos.7123, 2164, 7120 & 2167 of 2008 [2]
CWP Nos.16729 & 20458 of 2009
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CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Sarjit Singh, Senior Advocate, with
Mr. Jagdev Singh, Advocate, for the petitioners.
Mr. Amit Chaudhary, DAG, Punjab.
Mr. J.S.Bhandohal, Advocate,
for C.L.Premy, Advocate.
*****
RAKESH KUMAR JAIN, J.
By way of this order, we shall dispose of the following cases:
1. CWP No.7123 of 2008 titled as "Darshan Singh Vs. Joint Development Commissioner (IRD) and others" [first petition];
2. CWP No.2164 of 2008 titled as "Darshan Singh Vs. Joint Development Commissioner (IRD) and others" [second petition];
3. CWP No.7120 of 2008 titled as "Kirpal Singh Vs. Joint Development Commissioner (IRD) and others" [third petition];
4. CWP No.2167 of 2008 titled as "Kirpal Singh Vs. Joint Development Commissioner (IRD) and others" [fourth petition];
5. CWP No.16729 of 2009 titled as "Bir Singh Vs. State of Punjab and others" [fifth petition]; and
6. CWP No.20458 of 2009 titled as "Joginder Singh and others Vs. State of Punjab and others" [sixth petition].
In the first petition, petitioner Darshan Singh has challenged order dated 02.03.2005 (Annexure P-3) and order dated 31.01.2007 (Annexure P-4), passed by the Collector and Commissioner, respectively, by CWP Nos.7123, 2164, 7120 & 2167 of 2008 [3] CWP Nos.16729 & 20458 of 2009 :::::::::
which an application filed by the Gram Panchayat under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 [for short "1961 Act"] for seeking eviction of the petitioner from the land measuring 71 Kanals 04 Marlas, comprised in Khewat/Khatauni No.137/271, Khasra Nos.9//25(4-0), 23//1(3-4), 2(8-0), Khewat/Khatauni No.137/274, Khasra No.10//20(8-0), 21(8-0), 22(8-0), 23(8-0), Khewat/Khatauni No.137/279, Khasra No.8//21(8-0) and 22(8-0), Khewat/Khatauni No.137/282, Khasra No.23//3(8-0), situated in village Dullar, Tehsil Samana, District Patiala, has been allowed.
In the second petition, petitioner Darshan Singh has challenged order dated 24.10.2002 (Annexure P-2) and order dated 31.01.2007 (Annexure P-3), passed by the Collector and the Commissioner respectively, by which an application filed by Darshan Singh under Section 11 of the 1961 Act, in respect of the land which is involved in the first petition, has been dismissed.
In the third petition, petitioner Kirpal Singh has challenged order dated 02.03.2005 (Annexure P-3) and order dated 31.01.2007 (Annexure P-4), passed by the Collector and Commissioner respectively, by which an application filed by the Gram Panchayat under Section 7 of the 1961 Act for seeking eviction of the petitioner from the land measuring 90 Kanals 11 Marlas, comprised in Khewat/Khatauni No.143/250, Khasra Nos.4//14 (3-2), 17(8-0), 18(8-0), 19(7-7), 21 to 23(8-0 each), 10//1 to 3 (8- 0 each), 10(8-0), situated in village Dullar, Tehsil Samana, District Patiala, has been allowed.
CWP Nos.7123, 2164, 7120 & 2167 of 2008 [4] CWP Nos.16729 & 20458 of 2009 :::::::::
In the fourth petition, petitioner Kirpal Singh has challenged order dated 21.06.2004 (Annexure P-3) and order dated 31.01.2007 (Annexure P-4), passed by the Collector and the Commissioner respectively, by which an application filed by Darshan Singh under Section 11 of the 1961 Act, in respect of the land which is involved in the third petition, has been dismissed.
The fifth petition has been filed by Bir Singh challenging order dated 24.05.2007 (Annexure P-6) and order dated 06.02.2009 (Annexure P-7), passed by the Collector and Commissioner respectively, by which an application filed by the petitioner under Section 11 of the 1961 Act in respect of the land measuring 21 Bighas 13 Biswas, comprised in Khewat/Khatauni No.33/81, Khasra No.97(5-8), 98(8-0), 99(7-18), 100(6-
5), 101(6-5), 104(6-5), Khewat/Khatauni No.33/86, Khasra No.95(6-0), 96 (2-18), 102(6-5) and 103(6-5), situated in village Fatehpur Jattan, Tehsil and District Patiala, has been dismissed. However, as per record, application filed by the Gram Panchayat, under Section 7 of the 1961 Act against Bir Singh was allowed by the Collector on 11.11.1992 and the appeal was dismissed on 20.10.1994. Gram Panchayat filed another case against Bir Singh under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, in which damages @ `3,000/- per acre were imposed upon Bir Singh for illegal occupation of the Panchayat land.
Instead of vacating the land in dispute, Bir Singh filed petition under Section 11 of the 1961 Act, which was dismissed and the present writ petition has been filed.
CWP Nos.7123, 2164, 7120 & 2167 of 2008 [5] CWP Nos.16729 & 20458 of 2009 :::::::::
In the 6th petition, the petitioners have challenged order dated 22.07.2009 (Annexure P-6) and order dated 17.09.2007 (Annexure P-1), passed by the Commissioner and Collector respectively, by which an application filed by the petitioners under Section 11 of the 1961 Act in respect of the land measuring 38 Kanals 4 Marlas, comprised in Khasra Nos.37//3(7-4), 8(7-4), 36//3(8-0), 31//22(8-0), 23(7-16), situated in village Bijalpur, Tehsil Samana, District Patiala, has been dismissed.
In all the cases, common argument raised by counsel for the petitioners is that though the land in question has been recorded in the revenue record as Shamilat Deh Hasab Rasad Arazi Khewat, but as it was Banjar Qadim, not put to use for any common purpose, excluded from Shamilat Deh in terms of Section 2(g)(5) of the 1961 Act.
On the other hand, counsel for the respondents have submitted that as no date is given in Section 2(g)(5) of the 1961 Act for the purpose of proving exclusion of the land, on the ground that it is Banjar Qadim, the petitioners were required to prove that it was Banjar Qadim on 04.05.1961. He has relied upon a Division Bench judgment of this Court in CWP No.6727 of 2007 titled as "Gram Panchayat, Kalwa Vs. The Joint Development Commissioner (IRD), Punjab, Chandigarh and others"
decided on 30.03.2012, in which a similar argument was raised that the land is excluded from Shamilat Deh being Banjar Qadim, not used for any common purpose, as per the revenue record.
We have heard counsel for the parties and perused the record with their able assistance.
CWP Nos.7123, 2164, 7120 & 2167 of 2008 [6] CWP Nos.16729 & 20458 of 2009 :::::::::
The petitioners have claimed exclusion of land from Shamilat deh on the ground that it does not satisfy the mandate of Section 2(g)(5) of the 1961 Act as there is no evidence that the land in dispute, which is admittedly recorded as Banjar Qadim, was ever used for common purposes as per the revenue record.
This issue, in our view, is no more res integra as it has been concededly dealt with by this Court in Gram Panchayat, Kalwa's case (supra) in which it has been held as under:
"With the enactment of the 1954 Act, lands described as "Shamilat Deh" whether "Shamilat Deh" simpliciter or followed by expressions like "Hasab Rasad Arazi Khewat", "Zare Khewat" or "Hasab Rasad Paimana Malkiat", came to vest in a Gram Panchayat. As the 1954 Act did not provide a comprehensive definition of "Shamilat Deh", it was repealed and re-enacted as "the 1961 Act". Section 2(g) of the 1961 Act provides a comprehensive definition of "Shamilat Deh".
Section 2(g)(1) to (5) describes land that shall be "Shamilat Deh" and Section 2(g)(i) to (ix) describes situations in which such land shall be excluded from "Shamilat Deh". Section 3(1) of the 1961 Act postulates that this Act ('the 1961 Act') shall apply and before the commencement of CWP Nos.7123, 2164, 7120 & 2167 of 2008 [7] CWP Nos.16729 & 20458 of 2009 :::::::::
this Act, the "Shamilat Law" (i.e. the 1954 Act) shall be deemed always to have applied to all lands which are "Shamilat Deh" as defined in Clause (g) of Section 2 of 1961 Act. Section 3(2)
(i) of the 1961 Act provides that where any land has vested in a Gram Panchayat under the Shamilat law (1954 Act) but is excluded from "Shamilat Deh" by Section 2(g) of the 1961 Act, all rights, titles and interest of the Gram Panchayat shall cease and shall be vested in such person or persons in whom they vested before the Shamilat law (1954 Act). Section 4 of the Act provides for vesting of land in Gram Panchayats and protection of possession of non-proprietors.
A conjoint reading of Section 2(g)(i), Section 3 and Section 4 of the 1961 Act, reveals that all land described as "Shamilat Deh" came to vest in Gram Panchayat by virtue of the 1954 Act and only such "Shamilat Deh" is excluded, from vesting in a Gram Panchayat, as it provided for by Section 2(g) or Section 4 of the1961 Act. The 1961 Act has retrospective operation only to the extent provided by Section 3. Section 3(1) and 3(2)(i) of the 1961 Act reads as follows:-
CWP Nos.7123, 2164, 7120 & 2167 of 2008 [8] CWP Nos.16729 & 20458 of 2009 :::::::::
"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) Notwithstanding anything contained in sub- section (1) of Section 4, --
(i) where any land has vested in a Panchayat under the Shamilat law, but such land has been excluded from shamilat deh under clause (g) of section 2 other than the land so excluded under sub-clause (ii-a) of that clause, all rights, title and interest of the panchayat in such land as from the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995, shall cease and all such rights, title and interest shall vest in the person or persons in whom they were vested, immediately before the commencement of the shamilat law;
(3) xx xx xx xx A landowner, claiming that his land is excluded from "Shamilat Deh", shall be required to prove the ingredients of the exclusion clause, CWP Nos.7123, 2164, 7120 & 2167 of 2008 [9] CWP Nos.16729 & 20458 of 2009 :::::::::
from the date set out, in the clause so invoked. Where, however, an exclusion clause does not set out any date, the landowner could be required to prove the ingredients, of the exclusion clause, as on the date of enactment of the 1961 Act i.e. 4.5.1961.
The private respondents claim that the land is excluded from "Shamilat Deh" as it was "Banjar Qadim" and not used as per the revenue record for common purposes of the village. The Appellate Authority has accepted this plea by holding that as the land was "Banjar Qadim" and not used as per the revenue record for common purposes of the village on 09.01.1954, it is excluded from "Shamilat Deh". The learned Commissioner lost sight of the fact that Section 2(g)(5) of the 1961 Act, which provides for exclusion of "Banjar Qadim" from "Shamilat Deh" unlike some other sub-sections, does not prescribe the date on which the land would have to be proved to be "Banjar Qadim". A person claiming exclusion of his land under Section 2(g)(5) of the 1961 Act, would have to prove that the land was "Banjar Qadim" and not used for CWP Nos.7123, 2164, 7120 & 2167 of 2008 [ 10 ] CWP Nos.16729 & 20458 of 2009 :::::::::
common purposes of the village, according to the revenue record as on 04.05.1961 (the coming into force of the 1961 Act). The learned Commissioner has committed an error by holding that as the land was "Banjar Qadim" on 09.01.1954, the date of enactment of the 1954 Act, it is excluded from "Shamilat Deh".
In view of the aforesaid decision, the material date to prove exclusion is 04.05.1961. The petitioners have failed, to prove by leading cogent evidence, that the land in dispute was not being used for common purpose despite the fact that it was recorded as Banjar Qadim on 04.05.1961.
It is also argued by counsel for the petitioners that issues have not been framed in the petition filed under Section 11 of the 1961 Act, which is required to be decided as a Civil Suit, whereas counsel for the respondents has submitted that question of non-framing of issues would not arise in this case because the petitioners were alive to the issues involved and led their respective oral as well as documentary evidence.
We carefully considered the submissions and are of the view that non-framing of issues in the present case, filed under Section 11 of the 1961 Act, would not prejudice right of the petitioners because they were alive to the issues involved and had led their entire oral as well as documentary evidence.
In view of the aforesaid facts and circumstances, we do not find CWP Nos.7123, 2164, 7120 & 2167 of 2008 [ 11 ] CWP Nos.16729 & 20458 of 2009 :::::::::
any merit in the present writ petitions and as such, the same are hereby dismissed.
A photocopy of this order be placed on the file of another connected case.
(RAKESH KUMAR JAIN)
JUDGE
.07.2012 (RAJIVE BHALLA)
vinod* JUDGE