Punjab-Haryana High Court
Gram Panchayat Balad Kalan vs The Joint Development Commissioner And ... on 14 May, 2003
Equivalent citations: (2003)134PLR747
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. Gram Panchayat Balad Kalan, Tehsil and District Sangrur, has filed the instant writ petition under Articles 226/227 of the Constitution of India for issuance of writ in the nature of certiorari for quashing the order dated 05.05.1986 (Annexure P-7) passed by the District Development and Panchayat Officer (exercising the powers of Collector), Sangrur (respondent No. 2 herein) vide which the suit filed by the contesting respondents under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred, to as 'the Act') was decreed and it was declared that the land in question does not fall under the definition of 'shamlat deh' and does not vest in the Gram Panchayat and that the contesting respondents are owners of the same. The petitioner has also impugned the order dated 10.5.1995 (Annexure P-10),passed by the Joint Development Commissioner (IRO), Punjab (exercising the powers of Commissioner) (respondent No. 1 herein), vide which the appeal filed by the Gram Panchayat was dismissed and the aforesaid order dated 5.5.1986 was confirmed.
2. The brief facts of the case are that in the revenue record, the land in question measuring 68 bighas 17 biswas was recorded as 'Shamtat Deh Hasab Rasad Jare Khewat' in possession of 'Maqbuja Malkann'. The aforesaid land was mutated in the name of Gram Panchayat some where in the year 1954-55 in view of the provisions of the Punjab Village Common Lands (Regulation) Act, 1953 (hereinafter referred to as 'the Act of 1953). As per the revenue record this land was reserved and used for common purposes of the village as it was a 'Gair Mumkin Gharand'. This fact is clear from the jamabandi for the year 1958-59 (Annexure P-3) where in the column of cultivation this land has been descried as 'Maqbuja charand'. In the jamabandi for the year 1967-68 (Annexure P-4), for the first time, predecessor of the contesting respondents, namely Mehar Singh son of Hira Singh, was recorded in the column of cultivator as Gair Marusi and in column No. 9 the rate of rent was recorded as Rs. 200/- per year for the total land. This entry was repeated in the jamabandi for the year 1977-78 (Annexure P-6). In that jamabandi, contesting respondents, who are the legal heirs of the aforesaid Mehar Singh, are recorded in cultivating possession as Gair Marusis on yearly rent of Rs. 200/- for the entire land. The case of the petitioner Gram Panchayat is that the land in question was leased out by it to the aforesaid Mehar Singh in the year 1967. When he did not hand over the vacant possession of the land in question to the Gram Panchayat after 'expiry of the lease period, the petitioner Gram Panchayat filed an ejectment application under Section 7 of the Act against him. The said ejectment application was allowed and the predecessor of the contesting respondents was ordered to be ejected by Assistant Collector Ist Grade vide his order dated 25.3.1974. The appeal against that order was also dismissed.
3. In the years 1974, the contesting respondents filed a civil suit for declaration and injunction to the effect that they are owners of the land in question and the petitioner Gram Panchayat be restrained from taking possession of the land in question from them. Initially, the said suit was decreed on 16.8.1978. Appeal against the said decree was also dismissed. However, the judgment and decree passed in the said civil suit was set aside by this Court in Regular Second Appeal No. 1854 of 1979, while holding that the Civil Court has no jurisdiction to adjudicate the question whether the land in question falls under the definition of 'shamlat deh' or not and such question can only be decided in a suit filed under the Act before the Collector. In view of the said findings, the plaint was returned to the contesting respondents for filing the same before the Collector, who has the jurisdiction to adjudicate upon the matter. Thereupon, the contesting respondents filed instant suit/application under Section 11 of the Act before respondent No. 2, who was exercising the powers of Collector. The said suit was decreed by the Collector vide his order dated 5.5.1986 with the following observations:
"I have heard the arguments of counsel for both the parties. The counsel for the applicants argued that the land in dispute is owned by "Shamlat Deh" "Hasab Rasad Khewat" and the Zumla Mustarka Malkan are in its possession and this land is never used for the common purposes. Rather the applicants have been cultivating this land as owners since 1950. According to Jamabandi also the cultivation is recorded as that of Maqbbuja Malkans, The mutation No. 15 83 is wrong as it has been effected according to a circular of Govt. The respondents have not produced any document in their support to prove their ownership or to show the claim of the applicants was wrong. So, much so the statement of the Sarpanch has also not been got recorded from which it is clear that even the Panchayat is admitting the claim of the applicants internally. The counsel for the applicants argued that the case be decided on the basis of documents.
After hearing the arguments and going through the record I am of the opinion that the applicants are the owners in possession of the land in dispute and the respondent No. 1 has no right or interest on it. The land in dispute does not vest in Gram Panchayat. The applicants are owner in possession since 1950 therefore their claim is accepted."
4. Against that order, the petitioner Gram Panchayat filed an appeal before the Director Rural Development and Panchayat, Punjab who was exercising the powers of Commissioner under the Act. The said appeal was allowed by him vide order dated 20.6.1996 (Annexure P-9) and it was held that the contesting respondents are not the owners of the land in question. It was also held that the land in question falls under the definition of 'shamlat deh' and vests in the Gram Panchayat. It was further held that the predecessor of the contesting respondents took the land in question as lessee at the rate of Rs. 200/- per year from the Gram Panchayat and after the expiry of lease period, he did not hand over the vacant possession of the land to the Gram Panchayat. Thereafter; his possession on the land in question is unauthorised and illegal. It was, further, held that the contesting respondents, being lessee, cannot deny the title of the Gram Panchayat and their possession on the land in question after the expiry of lease period is wholly illegal and unauthorised. In this regard the learned Commissioner has observed as under:
"The present respondents have stressed on their plea that they have become the owner being in possession of the land in dispute since prior to 26.1.1950. This contention has no basis. Moreover this contention is useless in view of the, provisions of Punjab Village Common Lands (Regulation) Act, 1961. According to jamabandi for the year 1961-62 the land in dispute has been shown to be in possession of Maqbuja Malkan and the kind of land has been shown as "Banjar Qudim". The possession of applicants starts from 1967 and it is as tenants at the rate of 200 per year. The similar entries have been made for the year 1972-73 and 1977-78. The present respondents have not brought on record any evidence to controvert the entries in the (Jamabandis) revenue records. According to the entries made in the revenue record the respondents are the tenants of the Gram Panchayat and they had been depositing the rent with the Gram Panchayat Fund. It is also clear from the record that the present respondents have taken this land on rent from the Gram Panchayat in 1967-68. After the expiry of the tenancy they have not handed over the possession to the Gram Panchayat and are in forcible possession of the land in dispute. Being the tenants of Gram Panchayat they can not challenge the ownership of the Gram Panchayat. From the arguments above mentioned it is clear that the owner of the land in dispute is Gram Panchayat and no other opinion can be formed in this regard. The impugned order has been passed without going through the revenue record. Therefore this appeal, is accepted and the Gram Panchayat is declared as owner. The order dated 5.5.86 is set aside. The Gram Panchayat can proceed against the present owner under Section 7 of the Village Common Land Act if so desired."
5. Feeling aggrieved against the said order, the contesting respondents filed Civil Writ Petition No. 12337 of 1990 in this Court, which was allowed and the order dated 20.6.1996 (Annexure P-6) passed by the learned Commissioner was set aside and the matter was remanded. While remanding the matter, this Court held as under;
"After hearing counsel for the parties, I find that this petition deserves to succeed. It is significant that the order of the Collector is based virtually on an appreciation of oral evidence of the respondent and it was for the first time before the Director that the question, as to whether the petitioners were in fact lessees, had been raised. It is stated that even in the earlier civil litigation between the parties the respondent had not taken the stand that the petitioners were lessees on the land in dispute. There also appears to be some effort on the part of the Gram Panchayat at one stage to favour the petitioners with the result the requisite and proper evidence which sought to have been produced was not placed before the Collector. The fact, however remains that the Director has made out a completely new case which was neither pleaded in the written statement nor was taken at an early stage. It is also clear to me that the elaborate written arguments filed by the counsel for the petitioner (Annexure P-4) have not been discussed and considered while passing the impugned order which is stated to have been kept reserved for a long time and thereafter pronounced.
In view of what has been stated above, the present petition is allowed (Annexure P-1) is quashed and the case is remanded to the Director, Rural Development and Panchayat, Punjab, for fresh decision. It is, however, made clear that if the Director feels the necessity of taking evidence he may do so himself or have it done through the Collector. No costs."
6. After the remand, the learned Commissioner dismissed the appeal of the Gram Panchayat vide his order dated 10.5.1995, while observing as under;-
"After hearing the learned counsel for the parties, I am of the opinion that this appeal can not succeed. The respondents have been able to prove that the land in dispute does not vest in Gram Panchayat. Basic documents are in favour of the respondents. Documents as old as 1944-45 have been produced by the respondents. The Hon'ble High Court has ordered to decide this case afresh after considering comparative merits of the case. I declare that the land does not come under the definition of 2(g) of the Punjab Village Common Lands (Regulation) Act 1961. Hence, the appeal of the Gram Panchayat is liable to be dismissed. Accordingly, the order of the lower Court is up-held."
7. In the instant writ petition, the petitioner Gram Panchayat has challenged the aforesaid orders dated 5.5.1986 and 10.5.1995, passed by respondents No. 2 and 1, respectively.
8. Learned counsel for the petitioner submitted that the impugned orders passed by the Collector as well as the Commissioner are wholly non-speaking, and no reason has been recorded in these orders as to how the land in question does not fall under the definition of 'shamlat deh' as defined under Section 2(g) of the Act. Learned counsel submitted that prior to the year 1950, the land in question was described in the revenue record as 'Shamlat Deh Hasab Rasad Jare Khewat' under the cultivation of 'Maqbuja Malka'. The said land was being used as 'charand', though in the revenue record it was recorded as Banjar Qadim. The predecessor of the contesting respondents was never recorded in possession of this land prior to the year 1967-68 when for the first time his name appeared in the column of cultivation as Gair Marusi. Prior to this, in the year 1953-54 the land in question was recorded in the revenue record as "Shamlat Deh Hasab Rasad Jare Khewat' and was being used for common purpose of the village being 'cha-rand' and was mutated in the name of Gram Panchayat under the provisions of the Act of 1953. The said mutation in favour of Gram Panchayat was never challenged by and body, Thereafter, in the year 1967, the predecessor of the contesting respondents took the land in question on lease from the Gram Panchayat for cultivation at the rate of Rs. 200/- per year. This fact is clear from the jamabandis for the years 1967-68 and 1977-78. While referring to the decision of the Hon'ble Supreme Court in Shish Ram and Ors. v. State of Haryana and Ors., (2000-3)126 P.L.R. 367 (S.C.), learned counsel for the petitioner submitted that when the land in question was being used as 'charand' and has been so recorded in the revenue record, the same absolutely vests in the Gram Panchayat, and the Gram Panchayat was entitled to use such 'charand' land for any other purpose including for leasing out the same for cultivation as specified in Sub-rule (2) of Rule 3 of the Punjab Village Common Lands (Regulation) Rules (hereinafter referred to as 'the Rules'). Therefore, the mutation was rightly sanctioned in favour of the Gram Panchayat in the year 1954-55 keeping in view the use of the land in question. Learned counsel for the petitioner further submitted that once the predecessor of the contesting respondents took the land on lease from the Gram Panchayat, the contesting respondents were required to surrender the possession of the same after the expiry of the lease period and if they did not hand over possession of the land taken on lease, their possession on the land in question will be deemed to be unauthorised and illegal in view of Rule 19 of the Rules. Learned counsel for the petitioner further submitted that the contesting respondents being lessee on the land in question cannot question the title of the Gram Panchayat. Therefore, they are not entitled to claim ownership of the land in question. Learned counsel further submitted that this court, while remanding the matter to the Commissioner, had specifically directed that the Commissioner will determine the plea of lease taken by the Gram Panchayat but while deciding the appeal, the Commissioner has not considered this aspect of the matter at alt and allowed the appeal filed by the contesting respondents by passing a non-speaking and cryptic order. Therefore, the impugned orders are liable to be set aside.
9. On the other hand, learned counsel for the contesting respondents submitted that there is no infirmity or illegality in the impugned orders. Before the consolidation, the land in question was owned by 'Shamlat Deh Hasab Rasad Jare Khewat' which was in possession of 'Maqbuja Malkan'. This land was not used for any common purpose of the village as it was recorded as 'Banjar Kadim'. Such kind of land does not vest in the Gram Panchayat and a mutation was wrongly sanctioned in favour of Gram Panchayat. Learned counsel for the contesting respondents further submitted that Mehar Singh, the predecessor of the contesting respondents, was a proprietor of the village and he was in possession of the land in question since 1945-46. Therefore, the land in question was owned and possessed by him as a proprietor and the learned Commissioner has rightly held that the contesting respondents are owners of this land. Learned counsel submitted that the wrong mutation sanctioned in favour of the Gram Panchayat does not confer any title on it, and only on the basis of the said mutation, the revenue record shows that the land in question belonged to the Gram Panchayat. Merely on the basis of the wrong entries in the revenue record, it cannot be said that the land in question vests in the petitioner Gram Panchayat. Learned counsel further submitted that the aforesaid Mehar Singh did not take the land in question on lease from the Gram Panchayat. The entries in this regard in the jamabandis for the year 1967-68 and 1971-72, and in the subsequent jamabandis, are factually incorrect. The petitioner Gram Panchayat did not lead any evidence to establish that Mehar Singh took the land in question on lease from it. It has been further contended that neither in the previous litigation nor in reply to the instant suit under Section 11 of the Act, filed by the contesting respondents, the petitioner took the stand that the land in question was leased out to them for cultivation by the Gram Panchayat. Learned counsel further submitted that the petitioner Gram Panchayat did not lead any evidence to prove this fact after the remand of the case by this Court. Therefore, in no circumstance it can be said that the land in question was taken on lease by the contesting respondents from the petitioner Gram Panchayat for cultivation, and the vacant possession of the same was not handed over to it after the expiry of lease period. Therefore, learned counsel for the contesting respondents submitted that there is no illegality in the impugned orders and the instant writ petition filed by the Gram Panchayat is liable to be dismissed.
10. After hearing the arguments of learned counsel for both the parties and perusing the record of the case, I am of the opinion that the instant writ petition filed by the petitioner Gram Panchayat deserves to be allowed and the impugned orders dated 5.5.1986 and 10.5.1995, passed by respondent No. 2 and I, respectively, are liable to be set aside.
11. In the jamabandis for the year 1945-46 and 1953-54, the land in question was recorded as "Shamlat Deh Hasab Rasad Jare Khewat' and in possession of 'Maqbuja Malkan' in the column of cultivation. As per the evidence available on the record, the aforesaid land was being used for common purpose of the village i.e. for 'charand'. The witnesses, who were examined by the contesting respondents before the Assistant Collector Ist Grade in the instant case, have categorically stated that earlier to the possession of the predecessor of the contesting respondents; animals used to gaze in the land in question. Not only this, in the jamabandi for the year 1957-58 the land in question has been recorded as 'Gair maqbuja Charand'. In view of the aforesaid factual position, when the Act of 1953 came into force, the aforesaid 'shamlat deh' was being used for the common purpose of the village. Because of this reason, the land in question was mutated in the name of Gram Panchayat in the year 1955-56 on the basis of the Act of 1953.
12. Section 2(g) of the Act clearly provides that a land, described in the revenue record as 'shamlat deh' and is being used for the benefit of the village community or for common purpose of the village, falls under the definition of 'shamlat deh' and the same shall vest in the Gram Panchayat under Section 4 of the Act. Merely because the land in question was recorded in the revenue record as 'Shamlat Deh Hasab Rasad Jare Khewat' in possession of 'Maqbuja Malkan', it cannot be said that it belongs to the proprietor, particularly when it was being used for benefit of the village community and for the common purpose of the village i.e., for 'charand'. In Shish Ram and Ors. v. State of Haryana and Ors. (supra), it has been held by the Apex Court that if the shamlat deh of the village was being used as 'charand' then it falls under the definition of shamlat deh as defined under Section 2(g) of the Act. Even if in the revenue record, nature of the land has been recorded as 'Banjar Qadim', the same does not make any difference if the cultivation of the land has been recorded as 'charand' and admittedly the same was being used as 'charand'.
13. The suit was filed by the contesting respondents. The burden of proof was on them to prove that the land in question does not vest in the Gram Panchayat. But they did not lead any evidence to the effect that the land in question was in their cultivating possession prior to coming into force of the Act of 1953. There is no revenue entry available on the record, which establish the individual possession of the predecessor of the contesting respondents, namely Mehar Singh, on the land in question prior to the coming into force of the Act of 1953. As per the revenue record available, the land in question was receded in possession of 'Maqbuja Malkan' and being used as a 'charand'. Even otherwise, the contesting respondents have not placed on record as to what was the holding of their predecessor in the village and what was their share in the Zumla Mushtarka Malkan. The list of proprietors of the village is always available with the revenue Patwari but no such list was produced to show that the predecessor of the contesting respondents was the proprietor in the village holding and he was having any share in the Zumla Mustarka Malkan land.
14. In the instant suit/application, filed by the contesting respondents under Section 11 of the Act, the burden of proof lies on them to establish that being proprietors of the village, they are owners of the land in question and the same does not fall under the definition of 'shamlat deh' nor it vests in the Gram Panchayat under Section 4 of the Act. To prove this fact, the contestiong respondents did not lead any sufficient evidence which establish their ownership on the land in question. In the instant case, the muation of land in question was sanctioned in the name of Gram Panchayat long back in the year 1955-56. None of the proprietors ever challenged the aforesaid mutation. The land in question was leased out to the predecessor of the contesting respondents by the Gram Panchayat and after the expiry of the lease period the vacant possession of the same was not handed over to it. Thereupon, the petitioner Gram Panchayat initiated ejectment proceedings against the predecessor of the contesting respondents under Section 7 of the Act. In those proceedings, the petitioner Gram Panchayat was held to be owner of the land in question and order of ejectment was passed against Mehar Singh, predecessor of the contesting respondents by the Assistant Collector Ist Grade, Sangrur on 28.3.1971. Against that order, the aforesaid Mehar Singh filed appeal which was dismissed and the order of eviction passed against him was confirmed by the Collector, Sangrur, vide his order dated 25.3.1974. The predecessor of the contesting respondents contested the aforesaid application filed by the petitioner Gram Panchayat but in those proceedings he neither raised any question of title nor contested those proceedings by pleading that he was the owner of the land in question being one of the proprietors of the village and the land in question does not fall under the definition of 'shamlat deh' and the same does not vest in the. Gram Panchayat. When his appeal against the ejectment order dated 28.3.1971 was pending before the Collector, he filed suit for declaration and injunction before the Civil Court to the effect that he was owner in possession of the land in question which did not vest in the Gram Panchayat and the Gram Panchayat was not legally entitled to dispossess him under the order of eviction dated 28.3.1971 as the said order is wholly without jurisdiction and ineffective on his right. The said suit was initially decreed by the civil Court, but ultimately this Court in RSA No. 1854 of 1979 set aside the said judgment and decree while holding that the civil court has no jurisdiction to decide the matter and only the Collector under the Act has the jurisdiction to determine the controversy. Thereupon, the contesting respondents filed the instant suit/application under Section 11 of the Act, which was initially decreed by the Collector but the said order was set aside in appeal by the Commissioner while holding that the land in question was taken on lease by the predecessor of the contesting respondents and the possession of the same was not handed over to the Gram Panchayat after the expiry of lease period, therefore, in that situation, they cannot deny the title of the Gram Panchayat. When the said order was set aside by this Court in the writ petition filed by the contesting respondents and the matter was remanded, it was incumbent upon the learned Commissioner to decide the said issue of taking the land in question on lease by the contesting respondents. For the purpose, he was permitted by the remand order to take evidence, if necessary. But the learned Commissioner by the impugned order (Annexure P-10) has not at all considered this aspect of the matter and dismissed the appeal of the Gram Panchayat by passing a wholly non-speaking and cryptic order. Sufficient documentary evidence is available on the record of the case, which clearly establish that the land in question was taken on lease by the predecessor of the contesting respondents from the Gram Panchayat. In the jamabandi for the year 1967-68 (Annexure P-4), father of the contesting respondents has been recorded in the column of cultivator as 'Gair Marusi' and in column No. 9 rate of rent is recorded as Rs. 200/- per year. This entry was repeated in the jamabandis for the year 1973-74 and 1977-78. These jamabandis carry the presumption of truth. Contesting respondents, who are legal heirs of Mehar Singh are recorded as 'Gair Marusi tenants' on yearly rent of Rs. 200/- for the entire land. This fact clearly establishes that predecessor of the contesting respondents was inducted as a lessee on the land in question by the petitioner Gram Panchayat and when he failed to hand over the vacant possession thereof after the expiry of lease period, an ejectment application under Section 7 of the Act was filed against him, which was allowed. At that time, Mehar Singh did not raise any question of title that he was not in unauthorised and illegal possession of the land in question and that actually he was the owner in possession of the same.
15. The contention of the learned counsel for the contesting respondents that the petitioner Gram Panchayat did not take this plea in the reply filed to the suit/application under Section 11 of the Act and did not lead any evidence to prove the leasing out of the land in question to 'Mehar Singh cannot be accepted. When the matter was remanded by this Court, it was incumbent upon the Commissioner to decide the question as to whether the land in question was leased out by the petitioner Gram Panchayat to Mehar Sing or not. For that purpose, he was also authorised to take evidence, if necessary. In spite of the fact that the matter was specifically argued before him in this regard, he did not decide this question. In my opinion, the documentary evidence available on the record in the shape of revenue record is sufficient and safe material on the basis of which it can be held that the predecessor of the contesting respondents was inducted on the land in question as a lessee of the petitioner Gram Panchayat and after expiry of lease period, the vacant possession of the same was not handed over to it. The contesting respondents continuously remained in possession of the land in question as unauthorised lessees of the petitioner Gram Panchayat and when the order of ejectment was passed and was being executed, they filed the instant suit/application under Section 11 of the Act challenging the title of the petitioner Gram Panchayat and by asserting that they are owners in possession of the land in question.
16. It is well settled that after the expiry of lease period, a lessee of the Gram Panchayat shall be deemed to be in illegal and unauthorised possession of the land leased out by the Gram Panchayat in view of Rule 19 of the Punjab Village Cqrnmon land (Regulation) Rules, 1964. In this regard reference can be made to the decision of the Hon'ble Supreme Court in Gurnam Singh and Ors. v. The Sub Divisional Officer (Civil) Kaithal and Ors., (1996-2)113 P.L.R. 642 (S.C.) and the decisions of this Court in Gram Panchayat, Jurassi Kalan v. The Collector, Kurukshetra, (1996-1)112 P.L.R. 528, Roshan alias Roshan Lal and Ors. v. The Secretary, Government of Haryana and Ors., (1998-3)120 P.L.R. 651 (F.B), Baldev Singh v. State of Punjab and Ors., 1998(2) P.L.J. 107 (D.B.) Mam Deen v. State of Haryana and Ors., (2000-1)127 P.L.R. 563. It is also well settled that a person having taken the land on lease cannot subsequently challenge the title of his landlord. In this regard, reference can be made to Jarnail Singh and Ors. v. Joint Director, Panchayats and Ors., 1999(1) P.L.J. 318 and Mam Deen v. State of Haryana and Ors., (2000-1)127 P.L.R. 563. In view of the aforesaid factual and legal position, there is no merit in the suit/application filed by the contesting respondents under Section 11 of the Act and the same is liable to be dismissed.
17. In view of the aforesaid discussion, this writ petition is allowed. Impugned order dated 5.5.1986 (Annexure P-7) passed by the Collector, Sangur, respondent No. 2, and the order dated 10.5.1995 (Annexure P-10) passed by the Commissioner, respondent No. 1, are hereby aside and the suit filed by the contesting respondents under Section 11 of the Act for declaring them to be owners of the land in question is dismissed with costs, which is assessed at Rs. 10,000/-.