Punjab-Haryana High Court
Gram Panchayat vs The Commissioner on 28 February, 2014
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
CWP No.14875 of 1992 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.14875 of 1992
Date of Decision:28.02.2014
Gram Panchayat, Village Bir Kalwa ....Petitioner
Versus
The Commissioner, Ambala Division, Ambala ...Respondents
and others
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. Himanshu Sharma, Advocate, for
Mr. Pritam Saini, Advocate, for the petitioner.
Mr. D. Khanna, Additional Advocate General, Haryana.
Mr. Aseem Aggarwal, Advocate
for respondent No.4.
HEMANT GUPTA, J.
Challenge in the present writ petition is to an order passed by Assistant Collector on 27.11.1990, whereby respondent No.4 was ordered to be evicted from the land shown by points IF, FM, MN by demolition of wall, whereas, he was declared owner of the area CD, DA, CB and BE apart from portion EM, EB, BJ, MJ adjoining the phirni. Feeling aggrieved against the said order, the appeals filed by the parties were dismissed. Still further, the revision filed by the Panchayat before the Commissioner remained unsuccessful. Still aggrieved, Panchyat is in the present writ petition.
Kumar Vimal 2014.03.26 14:00 I attest to the accuracy and integrity of this document Chandigarh CWP No.14875 of 1992 -2-
Though, the site plan is not on the record of the writ petition but learned counsel for the petitioner has produced the certified copy of the site plan, which is taken on record and marked as Annexure P/5.
A perusal of the record shows that initially the Gram Panchayat filed an application under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (For short, the Act) which was dismissed on 28.05.1980. However, learned Collector, in appeal remanded the case vide order dated 21.01.1981 holding that the question of title arises and the suit be decided under Section 13B (Now Section 13A) of the Act. Thereafter, respondent No.4 filed a suit which was allowed by the Assistant Collector on 30.06.1982. However, learned Collector set aside the order on 23.11.1982. In further appeal, the learned Commissioner on 03.04.1984 set aside the order passed by the Collector and remanded the case to decide the same afresh after framing issues. Thereafter, the learned Collector framed the following issue:
"Whether the land does not vest in the Gram Panchayat under any of the clauses of Section 2(g) of Punjab Village Common Lands (Regulation) Act, 1961? OPP"
The learned Assistant Collector while considering the respective contentions of the parties has recorded a finding that the land which is lying vacant and not in possession of any person and is being used for common purposes would be a shamlat deh. It was, thus, concluded that in respect of the remaining land (other than the land which is of street), the Gram Panchayat has not been able to produce any documentary evidence that the rest of the land was left for common purposes. The learned Kumar Vimal 2014.03.26 14:00 I attest to the accuracy and integrity of this document Chandigarh CWP No.14875 of 1992 -3- Assistant Collector has returned the following findings:
"I have heard the arguments of the counsel for the parties and have personally inspected the spot and have also given opportunity to both the parties to produce their evidence on the issue as per direction of the Commissioner, Ambala Division Ambala. Site plan was also got prepared from the halqa patwari and Kanungo, according to the spot. According to the issue framed by the Commissioner, the land in dispute under Section 2 sub clause (iv) did not fall within the meaning of Shamlat Deh but is in the abadi deh. In sub-clause (iv) it is provided that the land will be deemed to be of Abadi Deh or Gora Deh, which is lying vacant at the spot if the same is not in possession of any person and is being used for common purposes by the villagers, i.e. street, play ground, school, wells, ponds etc. But only point IN, NM, MF and FI which is the street land on the remaining land the provisions are not applicable, because the Gram Panchayat has not been able to produce any such documentary evidence from which it could be established that except the street land, the rest of the disputed land was left for common purposes of the villagers."
Section 2(g)(4) as originally enacted contemplated that vacant land within the abadi, which is being used for common purpose, would vest with Gram Panchayat. Section 2(g)(4a) of the Act was inserted vide Act. No. 15 of 1983 w.e.f 12.02.1981, provided that the vacant land in abadi deh or gora deh not owned by any person falls within the definition of shamlat deh. Still later Clause 4 of Section 2(g) of the Act was substituted by another amendment carried out by Haryana Act No.9 of 1992. The relevant clauses, before and after amendment, read as under:
Before Amendment "2(g)(4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, Kumar Vimal 2014.03.26 14:00 I attest to the accuracy and integrity of this document Chandigarh CWP No.14875 of 1992 -4- drinking wells, or ponds within abadi deh or gorah deh; and"
"**2(g)(4a) "vacant land situate in abadi deh or gora deh not owned by any person".
(**Inserted vide Haryana Act No.15 of 1983 w.e.f. 12.02.1981) After amendment "*2(g)(4) lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds situated within the sabha area as defined in clause (mmm) of section 3 of the Punjab Gram Panchayat Act, 1952, excluding lands reserved for common purposes of a village under section 18 of the East Punjab Holdings Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under section 23-A of the aforesaid Act."
(*As amended by Haryana Act No.9 of 1992).
In view of the statutory provisions, the argument of learned counsel for the petitioner is that the land in question described as BAENMJ being vacant would be a shamlat deh in terms of Section 2(g) (4a) of the Act and in respect of which Panchayat is competent to seek eviction of the respondent herein.
A perusal of the above resume of the amendments would show that initial provision was that land used or reserved for benefit of village community including streets, lanes & playgrounds within abadi deh shall form part of shamlat deh, however, with the insertion of Section 2(g)(4a), even vacant land irrespective of the fact; whether it is reserved for common purposes or not, was deemed to be a shamlat deh. Thereafter, while substituting clause (4) of Section 2(g) by Haryana Act No.9 of 1992, the Kumar Vimal 2014.03.26 14:00 I attest to the accuracy and integrity of this document Chandigarh CWP No.14875 of 1992 -5- scope of shamlat deh was expanded, so as to include the land used or reserved for the benefit of village community including streets, lanes, playgrounds & schools etc. situated within sabha area, as defined in clause (mmm) of Section 3 of the Punjab Gram Panchayat Act, 1952 while excluding land reserved for common purposes in terms of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948. The 'Sabha area' in terms of Section 3 (mmm) of the Punjab Gram Panchayat Act means an area declared to be a sabha area under Section 4 of the said Act. Section 4 of the said Act empowers the Government to declare any village or group of contiguous villages to constitute a sabha area. Therefore, in respect of abadi deh or gora deh, the land used or reserved for the benefit of village community wherever located within sabha area was deemed to be a shamlat deh. After Section 2(g)(4) was substituted by Haryana Act No.9 of 1992, the Punjab Gram Panchayat Act has been repealed by Haryana Panchayati Raj Act, 1994. But even though the said Act has been repealed, but the corresponding provisions of the Haryana Panchayati Raj Act,1994 would continue to be applicable in respect of sabha areas so notified in terms of Section 8 of the General Clauses Act, 1897.
The portion NIFM is 11 feet wide which is part of the passage meeting phirni on the southern side with the rasta sarai aam on the northern side. Such land is meant for common purpose and would vest with Panchayat in terms of amended and un-amended Section 2(g)(4) of the Act. The learned Assistant Collector found that portion IFNM is the part of the street, therefore, the same would vest with Panchayat in terms of Kumar Vimal 2014.03.26 14:00 I attest to the accuracy and integrity of this document Chandigarh CWP No.14875 of 1992 -6- un-amended Section 2(g)(4) of the Act.
On the Eastern side of such passage, there is house of Fakiria marked ABCD thereafter, a vacant land marked as BAENMJ measuring 46 feet on the Eastern side and 50 feet 6 inches on the northern side. Respondent No.4 has not produced any evidence in proof of his possession over such vacant land. None of the villager has deposed that either Fakiria respondent No.4 or his ancestors were in possession of such land. In the absence of any evidence of established possession leading to inference of ownership over the land situated within abadi deh, the land would vest with Panchayat.
But the finding of the learned Assistant Collector that the vacant land does not vest in Panchayat, as the Panchayat has not produced any documentary evidence that it was left for common purposes of the villagers, is incorrect and contrary to the provisions of Section 2(g)(4a) of the Act, which was inserted by Haryana Act No.15 of 1983, but w.e.f. 12.02.1981 i.e. even much before the filing of the proceedings under Section 7 of the Act by the Panchayat. The use of the land for the common purpose for the inhabitants of the village in abadi deh or gora deh land was relevant prior to addition of clause (4a) vide Haryana Act No.15 of 1983. The authorities have overlooked the provisions of Section 2(g)(4a) of the Act, which make the vacant land within abadi deh as vesting in Panchayat.
Consequently, order passed by authority under the Act holding that such vacant land would vest with Fakiria is not sustainable. The said part of the order is set aside. Portion ABCD alone would vest with Kumar Vimal 2014.03.26 14:00 I attest to the accuracy and integrity of this document Chandigarh CWP No.14875 of 1992 -7- respondent No.4 Fakiria, wherein his house is constructed.
In view of the above, we deem it appropriate to allow the present writ petition in the above terms.
(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) 28.02.2014 JUDGE aarti/Vimal Kumar Vimal 2014.03.26 14:00 I attest to the accuracy and integrity of this document Chandigarh