Punjab-Haryana High Court
M/S Singla Enclave Developer Pvt. Ltd vs State Of Punjab And Ors on 5 February, 2016
Bench: Rajive Bhalla, Amol Rattan Singh
Civil Writ Petition No.9998 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.9998 of 2013
Date of Decision: 5th February, 2016
M/s Singla Enclave Developer Pvt. Ltd.
...Petitioner
Versus
State of Punjab and others.
...Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Mr. Kanwaljit Singh, Sr. Advocate, with
Mr. Ajaivir Singh, Advocate,
for the petitioner.
Ms. Munisha Gandhi, Addl. Advocate General, Punjab
Mr. B.S.Sra, Advocate,
for respondent no.3.
RAJIVE BHALLA, J.
The petitioner prays for issuance of a writ in the nature of certiorari, quashing order dated 18.03.2013 (Annexure P-13), passed by the Director, Rural Development and Panchayats, Punjab, (exercising the powers of Commissioner, under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act'), holding that the land in dispute belongs to the Gram Panchayat.
The question, that requires an answer, briefly put, is whether the land, in dispute, is "private property" that vests in the petitioner or "Shamilat Deh" that vests in the Gram Panchayat, under NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -2- the 1961 Act.
Both parties, i.e., the petitioner and the Gram Panchayat claim ownership of the land, in dispute, on the basis of revenue entries, with the petitioner relying upon entries from the year 1888- 89, recording Kirpa Dass, Chela Jal Dass, as exclusive owner and after him his successors, whereas the Gram Panchayat relies upon the expression "Malik Kabja Tehat Shamilat Deh", to support its plea that the land was "Shamilat Deh" and asserts that "Shamlat" land was merely entrusted to a Thakurdwara, through Kirpa Dass, for maintenance and upkeep of the Thakurdwara. The Gram Panchayat also relies upon a letter dated 29.01.1857, issued by the Punjab Government, exempting payment of land revenue to assert that this land was given as a Maufi for the upkeep of a Thakurdwara. At this stage, it would be appropriate to narrate the facts.
The petitioner purchased the land, in dispute, measuring 18 bighas 12 biswas and 9 biswansis, by two separate sale deeds dated 22.02.2011 and 06.06.2011, from Ram Gopal, Chela Lekh Ram, Chela Kirpa Dass and Pawan Kumar and Krishan Kumar sons of Ram Gopal, respectively, who were admittedly recorded as owners of the land, in dispute. The revenue authorities have recorded mutations of ownership in favour of the petitioner on the basis of these sale deeds. The Gram Panchayat filed Civil Writ Petition No.15170 of 2011, which was withdrawn with liberty to file a petition under Section 11 of the 1961 Act.
The Gram Panchayat filed a petition under Section 11 of the 1961 Act, pleading that the land in question is "Shamilat Deh" and NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -3- was entrusted to Kirpa Dass, Chela Jal Dass, for maintenance and upkeep of a Thakurdwara. The land, therefore, continues to vest in the Gram Panchayat.
The petitioner, filed a reply setting out the details of the land and pleading that the land was recorded as the exclusive ownership of Kirpa Dass, in the jamabandi for the year 1888-89, without reference to "Shamilat Deh". After his death the land was recorded in the name of Lekh Dass etc. Even before and after consolidation the land was recorded as the ownership of Lekh Dass. After the death of Lekh Dass, a mutation of inheritance was recorded in favour of the petitioner's vendors. The petitioner also pleaded that documents prepared during consolidation record that there is no "Shamilat Deh"
in the village.
The Collector, after examining the documents, i.e., jamabandies from 1889 onwards, orders passed during consolidation and a report received from revenue officers, held that the land, in dispute, is the private property of the petitioner's vendors and does not vest in the Gram Panchayat.
Aggrieved by this order, the Gram Panchayat filed an appeal. The Director, Rural Development and Panchayats, Punjab, has vide the impugned order, dated 18.03.2013, allowed the appeal, set aside the order passed by the Collector and declared that the Gram Panchayat is owner of the land, in dispute.
Counsel for the petitioner submits that the petitioner draws title from Ram Gopal, Chela Lekh Dass, Chela Kirpa Dass and Pawan Kumar and Krishan Kumar sons of Ram Gopal, who sold the NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -4- land to the petitioner, vide sale deeds dated 22.02.2011 and 06.06.2011. A perusal of jamabandi for the year 1888-89 reveals that the column of ownership records Kirpa Dass, Chela Jal Dass, caste Faqir Bairagi, as exclusive owner in possession of the land, in dispute. The jamabandi does not refer to the words "Shamilat Deh", "Tehat Shamilat Deh" or a "Thakurdwara". The entry is repeated in the years 1900-01 and 1904-05, thereby proving that the land belonged to Kirpa Dass and was his private property. After the demise of Kirpa Dass, a mutation of ownership was recorded in the name of Lekh Dass, Chela Kirpa Dass but as "Malik Kabja Tehat Shamilat Deh". The entry is repeated in the jamabandies that follow, except in the jamabandi for the year 1955-56, which records the words "Panchayat Deh" instead of "Tehat Shamilat Deh" but even these words were subsequently deleted. The words "Malik Kabja"
denote an absolute owner who does not have a share in the "Shamilat Deh" of a village. The words "Tehat Shamilat Deh" or "Shamilat" or "Panchayat Deh" added after the word "Malik Kabja"
are meaningless and even otherwise, as they do not correspond to any mutation or any order passed by any revenue officer or Court, cannot raise an inference that the land is "Shamilat Deh".
Counsel for the petitioner further submits that a perusal of report dated 20.04.2015, filed by the Tehsildar, Ludhiana (West), reveals that the total "Shamilat Deh" of the village measuring 49 bighas 3 biswas and 5 biswansis was partitioned amongst proprietors, vide mutation no.1637. The land, in dispute, measuring 18 bighas 12 biswas 15 biswansis, was separately recorded as the NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -5- ownership of Lekh Dass Chela Kirpa Dass under a separate khewat, but was not partitioned and was kept separate. If the land had been "Shamilat Deh", it would have been recorded under the khewat number allotted to the "Shamilat Deh" and would have been partitioned along with the "Shamilat Deh" of the village. A perusal of the Scheme of Consolidation, dated 14.08.1963, reveals that it records that there is no "Shamilat Deh" land in the village, thereby supporting the correctness of Mutation No.1638, proving that the "Shamilat Deh" land had already been partitioned amongst proprietors and that the land belonging to the petitioner which was allotted a separate khewat and was not partitioned, had nothing to do with the "Shamilat Deh" of the village.
Counsel for the petitioner submits that the Gram Panchayat has failed to prove its primary contention, that the land was donated to a Thakurdwara, by reference to any evidence or revenue entry that may prove the existence of a Thakurdwara, much less that the land was donated to a Thakurdwara, or was a part of the "Shamilat Deh"
khewat. Neither the revenue record, nor any other evidence, proves the existence of a Thakurdwara in the village or that the land, in dispute, was transferred to the petitioner's predecessors for maintenance of a Thakurdwara. The letter dated 29.01.1857 records exemption from payment of land revenue, in favour of Kirpa Dass and after Kirpa Dass in favour of Lekh Dass etc. but does not refer to any Thakurdwara or that the land in dispute was dedicated to a Thakurdwara or that it was allotted as a "Maufi". The Collector, therefore, rightly held that the land, in dispute, is private property and NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -6- does not vest in the Gram Panchayat.
The Appellate Authority has reversed this order without considering the nature of revenue entries, the entries showing that the "Shamilat Deh" of the village and the land, in dispute, were always assigned separate khewat numbers, that Kirpa Dass, Lekh Dass Chela Kirpa Dass etc. are recorded as "Malik Kabja", the Scheme of Consolidation prepared in 1960, records that there is no "Shamilat Deh" in the village and mutation No.1638, records a partition of the "Shamilat Khewat". The Appellate Authority has merely relied upon the word "Shamilat Deh" appearing after the words "Malik Kabza" etc. and drawn an unwarranted inference that the land is "Shamilat Deh", without considering that the Gram Panchayat has failed to prove the existence of a Thakurdwara in the village or that this land was "Shamilat Deh". The impugned order is not only perverse and arbitrary but reveals a degree of ignorance about revenue terms and betrays a general lack of understanding of the nature of entries in a jamabandi. The first four jamabandies, do not refer to "Shamilat Deh". The fact that a separate khewat was allotted to Kirpa Dass, and his name was recorded in the ownership column as "Malik Kabja" prove that the land, in dispute, was the private property of the petitioner's vendors and even if the land may have at one time been "Shamilat Deh", but as Kirpa Dass is recorded as owner and his successors as "Malik Kabja", i.e., owners in possession, before the coming into force of the Shamilat Law and the 1961 Act, the land vests in the petitioner. The impugned order may, therefore, be set aside and the order passed by the Collector may be NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -7- restored by declaring that the land, in dispute, does not vest in the Gram Panchayat much less is it included in the "Shamilat Deh" of the village.
Counsel for the Gram Panchayat, per contra, submits that the order passed by the Commissioner, is legal and valid. A perusal of jamabandies from the year 1909-10 upto 1955-56, referred to by the Commissioner, reveal entries recording the words "Shamilat Deh", "Tehat Shamilat Deh". The land being "Shamilat Deh", vested in the Gram Panchayat under the 1953 Act. The words "Tehat Shamilat Deh", were, therefore, changed to "Tehat Panchayat Deh"
in the jamabandi for the year 1955-56. The mere use of the word "Malik Kabja" or the fact that a separate khewat was allotted to Lekh Dass or the fact that the "Shamilat Khewat" was partitioned, without including the land, in dispute, are irrelevant. A parcel of land recorded as "Shamilat Deh" on the coming into force of the 1953 Act, vests in the Gram Panchayat, irrespective of any rights, title or interest that any person may have had in the land, prior to the 1953 Act. The land having vested in the Gram Panchayat, under the 1953 Act, the petitioner can only succeed if he is able to prove that the land in dispute is excluded from "Shamilat Deh" by reference to any of the exclusion clauses enacted by Section 2(g) of the 1961 Act. The petitioner has instead of referring to any exclusion clause, claimed ownership on the basis of revenue entries which clearly record Lekh Dass followed by the petitioner's vendors as owners under the "Shamilat Deh". The land was entrusted to Kirpa Dass, a Mohtmim of a Thakurdwara, for welfare of a Thakurdwara, duly proved by NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -8- entries in the remarks columns of the jamabandies. The documents appended with the report filed by the Tehsildar, Ludhiana (West) and his subsequent affidavit detailing the entries in the revenue record in fact support the Gram Panchayat. The letter dated 29.01.1857, proves that land revenue was exempted, for services to a Thakurdwara, thereby proving the existence of a Thakurdwara and the fact that the land was given out of the Shamilat Deh" for maintenance of the Thakurdwara.
We have heard counsel for the parties, perused the impugned order, the order passed by the Collector, the relevant revenue record, a report dated 20.04.2015, prepared and filed by Tehsildar, Ludhiana (West), Annexure-I to Annexure-V, appended with the report and another affidavit of Sh. Sukhbir Singh Brar, Tehsildar, Ludhiana (West), along with a table of entries in the ownership column of jamabandies, from the years 1888-89, upto 1964-65.
As already noticed, the question that calls for an answer is whether the land, in dispute, was the private ownership of the petitioner's vendors or is a part of the "Shamilat Deh" of the village and vests in the Gram Panchayat?
The Gram Panchayat alleges that the land in dispute was the "Shamilat Deh" of the village and was given to a Thakurdwara, through Kirpa Dass Chela Jal Dass, for management and control. The petitioner, on the other hand, denies the existence of any Thakurdwara, asserts that the land, was the private property of Kirpa Dass, Chela Jal Dass, has nothing to do with the "Shamilat Deh" of NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -9- the village and after the demise of Kirpa Dass devolved upon his Chelas, who have sold the land to the petitioner.
Apart from a few self serving oral statements, both parties essentially rely upon entries in columns of the relevant jamabandies commencing from the year 1888-89, to assert their ownership but before referring to these entries, it would be appropriate to set out the nature of a jamabandi and its entries.
A jamabandi, is a part of the record of rights, prepared under Section 31 of the Punjab Land Revenue Act, 1887 (hereinafter referred to as 'the 1887 Act") to record proprietary and possessary rights in agricultural land. Section 44 of the 1887 Act, provides that a presumption of truth shall attach to an entry in the record of rights. The presumption, however, like all presumptions is rebuttable. Another significant legal principle that governs entries in the record of rights is that these entries neither confer nor divest title but in the absence of any other evidence of title, are relevant evidence of the facts that they seek to record, namely, the name of the owner, the person in possession, the class of land, the extent of the land holding, the rent, the land revenue to be paid, and any other rights in land.
A jamabandi consists of 12 columns. Column no.1 records the khewat number (the ownership number), column no.2 records the khatauni number (i.e. number assigned to a person in possession of a particular parcel of land), column no.3 records the name of Taraf/Patti and the name of the Lamberdar, column no.4 records the name of the owner, column no.5 records the name of the cultivator, NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -10- column no.6 records the mode of irrigation, column no.7 records the rectangle and khasra numbers (field numbers), column no.8 records the area and class of land, column no.9 record the rent, column no.10 records the share of ownership, column no.11 records land revenue and fees etc., column no.12, called the remarks column, records mutations regarding changes in ownership, cultivation and any other rights in land that may be created or extinguished.
As far as the present case is concerned, we are primarily concerned with column nos. 1, 3 , 4 and 12 of the relevant jamabandies and as both parties support their plea of ownership from entries in these columns. It would, therefore, be necessary to reproduce, in a tabulated form, column no.1 (khewat/ownership no.), column Nos.3 (name of Patti, Taraf) and 4 (column that records the name of the owner) and Column No.12 (the remarks column) of jamabandies, commencing from the year 1888-89, upto 1964-65.
YEAR Khewat Name of Patti or Name of owner Remarks
OF Number Taraf with name and description
JAMAB of Numberdar
ANDI and Revenue
Amount
1 3 4 12
1888-89 -- Kirpa Dass Chela Rs.15/- exempted
Jal Dass Caste from Govt. to the
Faqir Bairagi owner.
186
NARESH KUMAR
2016.03.03 09:38
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authenticity of this document
Chandigarh
Civil Writ Petition No.9998 of 2013 -11-
YEAR Khewat Name of Patti or Name of owner Remarks
OF Number Taraf with name and description
JAMAB of Numberdar
ANDI and Revenue
Amount
1896-97 -- Lekh Dass Chela As per order
Kirpa Dass Caste No.275 Mutation of
Faqir Bairagi inheritance
sanctioned.
As per order
No.277 remission
of revenue in
favour of Lekh
Dass sanctioned.
As per order 220
Mutation in favour
of Lekh Dass
sanctioned
Rectification of
revenue of Rs.15/-
in favour of Lekh
Dass
214
1900-01 Shamlat Lekh Dass Chela Revenue 15-00
Kirpa Dass Caste has been
Faqir Bairagi exempted in favour
of Lekh Dass.
216
1904-05 -- Lekh Dass Chela Revenue of 15-00
Kirpa Dass Caste in favour of Lekh
Faqir Bairagi Dass.
New Well installed
and started in
khasra no.752
0-8-0
240
NARESH KUMAR
2016.03.03 09:38
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authenticity of this document
Chandigarh
Civil Writ Petition No.9998 of 2013 -12-
YEAR Khewat Name of Patti or Name of owner Remarks
OF Number Taraf with name and description
JAMAB of Numberdar
ANDI and Revenue
Amount
1909-10 -- Kail Dass Chela As per order dated
Kirpa Dass Caste 19 July 1857 of the
Faqir Malak Kabja Commissioner and
Tehat Shamlat order of the
Deh Secretary Govt.
regarding
exemption, 12
Acre of Lekh Dass
Chela Kirpa Dass
Revenue
exempted from
payment of land
revenue on
account of welfare
of Thakur Duara
with the previous
conditions in
favour of Kail Dass
Mafidar restored.
236
1911-12 -- -- -- -- (columns blank)
1919-20 -- Lekh Dass Chela --
Kirpa Dass Caste
Faqir Bairagi
Malak Kabja Tehat
267 Shamlat
1923-34 -- Lekh Dass Chela --
Kirpa Dass Caste
Faqir Bairagi
resident of the
village Malak
Kabja Shamlat
Deh Hakdar
290 Shamlat
NARESH KUMAR
2016.03.03 09:38
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Chandigarh
Civil Writ Petition No.9998 of 2013 -13-
YEAR Khewat Name of Patti or Name of owner Remarks
OF Number Taraf with name and description
JAMAB of Numberdar
ANDI and Revenue
Amount
1931-32 -- Lekh Dass Chela Vide Letter No.144
Kirpa Dass Caste dated issued by
Faqir Bairagi the
resident of village Superintendent,
Malak Kabja Tehat O/o The
Shamlat Deh As Commissioner,
per Khewat 385 Sutlej Revenue is
permanently
exempted for the
welfare of Thakur
Duara with the
condition of noble
conduct.
386
1935-36 -- -- -- Columns Blank
1939-40 Mutation Istrak
Lekh Dass Chela 1637
Kirpa Dass Caste
Faqir Bairagi Mutation Partition
resident of village 1638
Malak Kabja Tehat
465 -- Shamlat Deh
1943-44 -- Lekh Dass Chela --
Kirpa Dass Caste
Faqir Bairagi
resident of village
Malak Kabja Tehat
Shamlat Deh
438
1955-56 -- Lekh Dass Chela --
Kirpa Dass Chela
Sakan Deh
Malak Kabja Taihat
Panchayat Deh
489
NARESH KUMAR
2016.03.03 09:38
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authenticity of this document
Chandigarh
Civil Writ Petition No.9998 of 2013 -14-
YEAR Khewat Name of Patti or Name of owner Remarks
OF Number Taraf with name and description
JAMAB of Numberdar
ANDI and Revenue
Amount
1959-60 -- Lekh Dass Chela Vide letter No.144
Kirpa Dass Chela dated 29/1/57
Jal Dass Sakan issued by the
deh Malak Kabja Superintendent,
O/o The
Commissioner,
Sutlej Revenue is
permanently
exempted for the
welfare of Thakur
Duara with the
condition of noble
conduct.
Note: Vide
Mutation No3655
of inheriteance of
Lekh Dass
deceased in favour
of Ram Gopal
Chela Lekh Dass
Chela Kirpa Dass
519 is sanctioned.
1964-65 P/427 Ram Gopal Chela Inheritance 3655
Lekh Dass Chela
Kirpa Dass Istraak 4061
resident of village
Partition 4062
Vide letter No.144
dated 29/1857
issued by the
Superintendent,
O/o The
Commissioner,
Sutlej Revenue is
permanently
exempted for the
welfare of Thakur
Duara with the
condition of noble
593 conduct.
A perusal of jamabandi for the year 1888-89, the first in the list of jamabandies that form the foundation of petitioner's claim, reveals that column No.1 of this jamabandi assigns khewat No.186, NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -15- i.,e. ownership number to the owner of the land. Column no.3 is vacant. Column no.4 (ownership column) records Kirpa Dass, Chela, Jal Dass, Caste Faqir Bairagi, as owner, but does not record "Shamilat Deh" or "Tehat Shamilat Deh" or "Thakurdwara" or any other word or expression that may denote that the land was a part of the "Shamilat Deh" of the village or was dedicated or transferred to "Kirpa Das, Chela Jal Dass, in lieu of services to a Thakurdwara or for maintenance of a Thakurdwara. The remarks column(column no.12), records that land revenue of Rs.15, is exempted.
The jamabandi for the year 1896-97, records Lekh Dass, Chela Kirpa Dass, Caste Faqir Bairagi, as owner of the land, in dispute, as Kirpa Dass had passed away. A mutation of inheritance is recorded in the remarks column. The jamabandi does not record the words "Shamilat Deh", "Thakurdwra" or any dedication of the land to a Thakurdwara. Column no.12, records exemption from payment of land revenue of Rs.15/-, in favour of Lekh Dass. The entries in jamabandies for the years 1900-01 and 1904-05 are identical, insofar as, they relate to column no.1, 4 and 12, but column no.3 of jamabandi for the year 1900-01 records the word "Shamilat", but as column no.3 pertains to the name of Taraf/Patti, and neither party alleges that the land was the "Shamilat" of a Taraf or a Patti, it appears that the word "Shamilat" was inadvertently recorded in column no.3 of this jamabandi.
A conjoint reading of these four jamabandies recorded in the years 1888-89, 1896-97, 1900-01 and 1904-05, reveal that Kirpa Dass and after him Lekh Dass were allotted separate khewat NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -16- numbers (ownership numbers), are recorded as exclusive owners of the land in dispute but without any reference to "Shamilat Deh", "Tehat Shamilat Deh", a Thakurdwara, or that the land was entrusted for maintenance and services to a Thakurdwara.
The jamabandi for the year 1909-10, however, reflects a significant change. A new khewat number is allotted(as a new khewat number is allotted in a new jamabandi), column no.3 is vacant, column no.4 records the name of the owner i.e. "Kail Das, Chela Kirpa Dass, Caste Faqir and then records the words "Malik Kabja Tehat Shamilat Deh"(owner in possession under the 'Shamilat Deh'). A perusal of the remarks column, however, reveals that there is no reference to a corresponding mutation or order to support the incorporation of the expression "Tehat Shamilat Deh" and, thus, it is not possible to determine the origin of these words. A perusal of column no.12 reveals that exemption from payment of land revenue, granted to Lekh Dass, Chela Kirpa Dass, for welfare of a Thakurdwara shall now operate in favour of Kail Dass, Chela Kirpa Dass but does not contain the name of the Thakurdwra nor does any other column of jambandi record that the land, in dispute, was dedicated to a Thakurdwara or from the land of the "Shamilat Deh" of the village. All that the remarks column records is exemption from payment of land revenue and does not record transfer of any land to Lekh Dass, Kail Dass etc. The entries in jamabandi for the year 1911-12 are identical to entries in jamabandi for the year 1909-10. The jamabandi for the year 1919-20, 1923-24, record Lekh Dass, Chela, Kirpa Dass as NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -17- "Malik Kabja Tehat Shamilat Deh". Column nos.3 and 12 are vacant. The same entries are repeated in jamabandies for the years 1931- 32, except that the remarks column (column No.12) refers to letter No.144, issued by the Commissioner, Sutlej Revenue, to permanently exempt land revenue for welfare of a Thakurdwara and on the condition of "noble conduct". The jamabandi for the year 1935-36 is identical. The jamabandi for the year 1939-40, records the name of Lekh Dass, Chela Kirpa Dass, Caste Faqir Bairagi, Malik Kabja Tehat Shamilat Deh", but contains a significant entry in the remarks column that has a bearing on the present controversy. The remarks column records "Mutation Istrak No.1637 and Mutation Taksim (partition) No.1638". The Tehsildar, Ludhiana (West) has appended copies of these mutation nos.1637 and 1638, with his affidavit, dated 20.04.2015.
A perusal of these mutations reveals that mutation no.1638 relates to partition of the "Shamilat khewat", whereas mutation no.1637 pertains to a consolidation of a part of the land. Both mutations record the "Shamilat Deh" and the land owned by Lekh Dass as separate parcels of land identified by separate khewat numbers and under separate entries.
The jamabandi for the year 1943-44 continues to record Lekh Dass, Chela Kirpa Dass Faqir Bairagi as "Malik Kabja Tehat Shamilat Deh", but jamabandi for the year 1955-56 records Lekh Dass, Chela Kirpa Dass, Chela Sakan Deh Malik Kabja "Tehat Panchayat Deh". The expression "Malik Kabja", however, it may be noticed, continues to preceed the word "Panchayat Deh". NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -18-
A detailed appraisal of the revenue entries in all the jamabandies reveal that a separate khewat number (ownership number) was assigned to Kirpa Dass, then Lekh Dass, then Kail Dass, then again to Lekh Dass and then to the vendors of the petitioner's. A separate khewat number is allotted to an owner of the land described in a jamabandi. If the "Shamilat Deh" was the owner and Kirpa Dass was only entrusted the land for management of a Thakurdwara, the land would have been recorded in the name of the Thakurdwara or continued to be recorded as the ownership of the "Shamilat Deh" and the entry would have referred to the "Thakurdwara" through Kirpa Dass under the same khewat and not to Kirpa Dass as owner by allotting a separate khewat. Our opinion is fortified by the mutation "Istraak" (consolidation) No.1637, which records a separate khewat for the "Shamilat Deh" land of the village measuring 49 bighas 3 biswas and 5 biswansis and a separate khewat for Lekh Dass Chela Kirpa Dass and under the ownership column, records the words "Malik Kabja Tehat Shamilat Deh", of 18 bighas 12 biswas and 15 biswansis. A perusal of mutation No.1638 "Taksim" (partition), reveals that it records the partition of the "Shamilat Deh", khewat measuring 42 bighas 4 bisawas and 5 biswansis, but the land shown as the ownership of Lekh Dass Chela Kirpa Dass, Tehat Shamilat Deh is separately recorded by assigning a separate khewat number, and was not included in the partition. We would once again point out that in case the land was part of the "Shamilat Deh", the entry would have commenced with the word "Shamilat Deh" followed by the name of Kirpa Dass and Lekh Dass NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -19- etc. and would have been partitioned along with the "Shamilat Deh"
of the village. We may, however, visualise a situation that this land was not partitioned as it was dedicated to a Thakurdwara but in the absence of proof of any such dedication or proof of existence of a Thakurdwara, are not prepared to speculate as to the rights of parties.
Thus, the four jamabandies from 1888-89, 1896-97, 1900- 01, 1904-05 record Kirpa Dass followed by Lekh Dass, Kail Dass as owners of the land, in dispute, but do not record the words "Shamilat Deh", "Tehat Shamilat Deh", a "Thakurdwara" or dedication of the land in dispute to a "Thakurdwara".
The jamabandies from 1909-10 onwards, however, record the words "Malik Kabja Tehat Shamilat Deh" after the name Kail Dass and LekhDass and eventually in jamabandi for the year 1955- 56, the words "Shamilat Deh" are replaced by the words "Panchayat Deh". A reference to a "Thakurdwara" is available in the remarks column starting from jamabandi from the year 1909-10, in the context of exemption from payment of land revenue but without reference to the name or location of the Thakurdwara or that the land, in dispute, was dedicated to a Thakurdwara through the petitioner's predecessors for management and services rendered. Neither counsel nor the authorities are able to explain how the words "Shamilat Deh" or "Tehat Shamilat Deh" etc. came to be recorded, particularly when jamabandies from 1888-89 to 1904-05 record the exclusive ownership of Kirpa Dass and Kail Dass, without reference to the words "Shamilat Deh" or "Tehat Shamilat Deh". Any NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -20- speculation as to the origin of these words is fraught with the charge of an arbitrary exercise of discretion but we may still speculate that this land may at some time in the distant past have been a part of the "Shamilat Deh", but was transferred to Kirpa Dass, Chela Jal Dass, as absolute owner, for his services to a Thakurdwara and therefore, came to be recorded as the ownership of Kirpa Dass, but there is no evidence that it was dedicated to a "Thakurdwara for its management by Kirpa Dass.
The question that now arises is the meaning of the words "Malik Kabza" and "Tehat Shamilat Deh" and whether these words prove that the land was "Shamilat Deh" or private ownership of the petitioner's vendors. The word "Malik" is sufficiently well understood to denote an owner but when read with the word "Kabja" to form the expression "Malik Kabja" denotes, an owner in possession without a share in the "Shamilat Deh" of a village. The words "Malik Kabza" are defined in paragraph 142 of the Settlement Manual in the following terms:-
"142. Malik kabza. - Owners are sometimes found in village communities who do not belong to the brotherhood and are not sharers in the joint rights, profits, and responsibilities of its members. Their proprietary title is a complete or undivided one, but it is confined to certain fields and does not include any share in the village waste. The name by which this tenure is officially known in the Punjab is NARESH KUMAR malkiyat makbuza, and the holder of it is called 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -21- malik kabza. These terms indicate that the interest of the proprietor is limited to the land actually in his own possession. This land he can let, mortagage, or sell as he pleases, and he is responsible for the payment of its revenue. A familiar instance of this form of land holding is the right acquired by a Brahman, who received a dohli or death-bed gift of a small plot of land from a landowner. The tenure is also created whenever a landowner sells a part of his holding without the appurtenant share of the village common land. The malik kabza tenure is common in the districts of Gujrat, Rawalpindi, Jhelum, Attock and Hazara, where it was introduced at the first regular settlement under circumstances which will be described in a later paragraph. In some cases the status of malik kabza is combined with that of an inferior proprietor. The status of an assignee or the heir of an assignee, who is recognised as owner of the plot which is, or was held free of revenue, subject to the payment of a proprietary fee in recognition of the superior title of the village community, of this description (see paragraph 182-185). This mixed form of tenure is common in the Jhelum District. The use of the word "Malik Kabja" in jamabandies commencing from the year 1910-11 and all succeeding jamabandies NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -22- indicates that the person recorded in column no.3 of the jamabandies, was exclusive owner in possession of the land, described in the jamabandi but without a share in the "Shamilat Deh"
of a village. The persons recorded in possession are Kail Dass, then Lekh Dass and then the petitioner's vendors.
However, as we were not fully satisfied about the authenticity of the revenue entries, a report was called from revenue authorities. A perusal of the report and the entries, which we have verified, reveal that entries from 1889 onwards are correct but there is no mutation or order that may explain how the words "Shamilat Deh" or "Tehat Shamilat Deh" etc. came to be recorded in the jamabandies. This apart the words "Malik Kabja", followed by the words "Tehat Shamilat Deh" appear for the first time in jamabandi, for the year 1909-10 and do definitely pose a problem but not insurmountable. A person recorded as "Malik Kabja", is absolute owner without a share in the "Shamilat Deh" and, therefore, could not be recorded as "Tehat Shamilat Deh". Our opinion is fortified by the fact that four jamabandies, preceding jamabandi for the year 1909- 10 do not refer to the land as "Shamilat Deh" or that the land was entrusted to Kirpa Dass etc. from the "Shamilat Deh". The only inference that we may draw, then also speculative, from these contradictory expressions is that the proprietary body may have gifted this land to Kirpa Dass a "Bairagi Faqir" for religious services and it was for this reason, that the words "Tehat Shamilat Deh" may have been appended by a revenue officer, so as to indicate the origin of the land, but at the same time as the land was transferred to NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -23- "Kirpa Dass", who had already been allotted a separate ownership khewat, the revenue officer added the words "Malik Kabja" to clarify absolute ownership without any right in the "Shamilat Deh" of the village.
At this stage, it would be appropriate to once again point out that the ownership column of jamabandies for the years 1888-89, 1896-97, 1900-01 and 1904-05, record Kirpa Dass and after his death Lekh Dass, and in between Kail Dass as owner without the use of the words "Malik Kabja". Thus, in view of these four jamabandies and the definition of the words "Malik Kabza", the person recorded in the ownership column, i.e., Kail Dass and then Lekh Dass was owner of the land, in dispute, without any share in the "Shamilat Deh" of the village.
As regards the argument that the land was entrusted to Kirpa Dass as Mohtmim of a Thakurdwara, it would be appropriate to point out that the relevant revenue record and the evidence adduced by the Gram Panchayat does not prove the existence of any Thakurdwara, in the village. Kirpa Dass may have been the Mohtmim of a temple or a Thakurdwara but as he is recorded as owner and his successors are recorded as "Malik Kabja" and there is no evidence of the existence of or the transfer of the land to a "Thakurdwara", we have no hesitation in holding that land belonged to Kirpa Dass as far back as in the year 1889.
The Maufi, recorded in column no.12 of the jamabandies, records that the Government has waived land revenue. In the absence of the proof of the existence of a Thakurdwara or evidence NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -24- that the land was dedicated to a Thakurdwara for maintenance alone, the entry cannot raise an inference that the land was "Shamilat Deh"
or that it was dedicate to a Thakurdwara, through Kirpa Dass. What can be inferred is that the exemption from land revenue, was subject to Kirpa Dass etc. continuing to serve some Thakurdwara. It cannot be inferred that the land itself was granted contingent upon any such service or that the land itself was part of "Shamilat Deh" as Kirpa Dass etc. were shown as owners, without any rider, in the earlier jamabandies for the years 1888-89 up till 1904-05.
The Collector has, while dismissing the petition, filed by the Gram Panchayat, held that the land, in dispute, is not "Shamilat Deh". The Appellate Authority has by referring to the word "Tehat Shamilat Deh" but ignoring the word "Malik Kabja", that appears in eight jamabandies and the failure of the Gram Panchayat to prove the existence of a Thakurdwara, recorded findings that are contrary to the record. A perusal of the record does not reveal the existence of any Thakurdwara much less any evidence of any Thakurdwara being in existence in the village at any time. The reference in column no.12 of the jamabandi to a Thakurdwara relates to exemption to the land, in dispute, from payment of land revenue. The Gram Panchayat was required to prove the existence of a Thakurdwara but has failed to do so by reference to any revenue record or any oral evidence that would enable us to hold that the land was transferred to Thakurdwara and not to Kirpa Dass "Malik Kabja".
In view of what has been discussed hereinabove, we are of the firm opinion that the land which may have been "Shamilat Deh" at NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -25- one stage, was recorded as the exclusive ownership of Kirpa Dass in the year 1888-89, and it was for this reason that the Chelas who followed Kirpa Dass was recorded as "Malik Kabja" i.e., owner in possession without a share in the "Shamilat Deh". The entry "Tehat Shamilat Deh" may, if at all, indicate the origin of the land, but in the absence of any evidence that the land was ever treated as the "Shamilat Deh" of the village, we rely upon the word "Malik Kabja" to hold that the land was the private property of Kirpa Dass and his Chelas, who succeeded him, separate from the "Shamilat Deh" of the village.
In view of what has been recorded hereinabove, we have no hesitation in holding that the order passed by the Director, Director, Rural Development and Panchayat, Punjab, (exercising the powers of Commissioner) is contrary to the record and must, therefore, be set aside.
Consequently, we set aside the order dated 18.03.2013 (Annexure P-13), passed by the Director, Rural Development and Panchayat, Punjab, restore the order, dated 30.10.2012, passed by the Collector-cum-Additional Deputy Commissioner (Development), Ludhiana, and allow the writ petition, but with no order as to costs.
(RAJIVE BHALLA)
JUDGE
February, 2016 (AMOL RATTAN SINGH)
nt JUDGE
NARESH KUMAR
2016.03.03 09:38
I attest to the accuracy and
authenticity of this document
Chandigarh
Civil Writ Petition No.9998 of 2013 -26-
Having gone through the judgment of my learned brother,
Rajive Bhalla, J.,though, on the grounds given towards the end of this order, I agree that the petition is to be allowed, however, the reasoning given by me is wholly different.
2. As has been noticed by my learned brother in detail, in this case, there is one entry of 'Shamlat Deh' in column No.3 of the 'jamabandi' for the year 1900-01, before and after which there is no entry of 'Shamlat Deh' in that column in which the kinship/clan/originator of ownerships' name is shown. However, in the year 1909-10, the entry in column No.4, i.e. in the column describing the owner, the words used are Kail Dass Chela Kirpa Dass, caste Faqir "Malak Kabja Tehat Shamlat Deh" (1909-10). Thereafter, from 1919-20 till 1943-44, the name Kail Dass is substituted with Lekh Dass with the rest of the entry remaining largely the same, except that in the year 1923-24, the term "Hakdar Shamlat Deh" occurs after the word 'Shamlat Deh' and in the year 1931-32 the words "as per khewat 385" occur at the end. In the year 1955-56, as already noticed by my brother, the words 'Tehat Panchayat Deh' substitute 'Tehat Shamlat Deh'. From 1959-60 onwards, there is no reference to 'Tehat Shamlat Deh" or 'Panchayat Deh'. In the jamabandi for the year 1964-65, even the phrase 'Malak Kabja' is not seen with the name of the owner, which is shown as Ram Gopal, Chela Lekh Dass, Chela Kirpa Dass, resident of the village. Obviously, Lekh Dass had passed on and Ram Gopal stepped into his shoes.
However, the term 'Malak Kabja' existed till the coming into effect of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the Act') and it is shown alongwith the term 'Tehat Shamlat Deh' uptill 1955-56 and thereafter, in 1959-60, simply as 'Malak Kabja', NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -27- with the phrase 'Tehat Shamlat Deh' having been dropped, as is also shown by the Tehsildar, Ludhiana (West), in the annexure annexed to his affidavit dated 14.05.2015.
Thus, the term "Malak Kabja" has to be read in with the word "Tehat Shamlat Deh", as most of the entries in column No.4 contain both these phrases.
3. As explained by my learned brother from paragraph 142 of the Punjab Settlement Manual, the proprietory title of such owners ('Malak Kabja') is a complete or undivided one, but confined to specific fields and does not include any share in the village waste (Shamlat Deh). The status of a 'Malak Kabja' has been further defined to be, in paragraph 142 of the Manual, to be, in some cases, the status of an inferior proprietor or of an assignee, or the heir of an assignee, who is recognised as the owner of the plot which is or was held free of revenue, subject to the payment of a proprietory fee in recognition of the superior title of the village community. However, it is also stated in the Manual, in the same paragraph, that such a proprietor can mortgage, let or sell the land as he pleased and he is the person responsible for payment of land revenue.
In view of the above, it is very clear that a 'Malak Kabja' can at best be an inferior landowner, especially when he is shown as 'Tehat Shamlat Deh', i.e. he is an inferior proprietor under the proprietory body, even though it would be rights of alienation.
In the present context what is to be seen are the entries as described above, alongwith the effect of the Punjab Village Common Lands (Regulation) Act, 1961, on the subject land, in view of the fact that it has been described as 'Tehat Shamlat Deh' from 1909-10 till 1955-56. NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -28-
4. The difference of opinion that I have with my learned brother, comes from the definition of the term 'Shamlat Deh' as described in the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act).
Section 2(g) of the said provision describes 'Shamlat Deh' as follows:-
"2(g) "Shamilat deh" includes-
1) lands described in the revenue records as shamilat deh excluding abadi deh;
2) shamilat tikkas;
3) lands described in the revenue records as shamilat, Tarafs, Pattis, 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 the village, community including streets, lanes, playgrounds, school, 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;
but does not include land which--
i) (Omitted by Punjab Act No.19 of 1976).
ii) has been allotted on quasi-permanent basis to a displaced person;
[9ii-a) was shamilat 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 commencement of this Act, but on or before the 9th day of July, 1985.]
iii) has been partitioned and brought under cultivation by NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -29- individual landholders 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 shamilat deh and 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 shamilat deh].
v) is described in the revenue records as Shamilat, Taraf, Pattis, 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, house or for cottage industry, immediately before the commencement of this Act];
vii) [Omitted by Punjab Adaptation of Laws of (State & SC) Order, 1968.]
viii) was shamilat deh, was assessed to land revenue and has been in the individual cultivating possession of co-sharers not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950; or [(ix) was being used as a place of worship or for purposes, subservient thereto, immediately before the commencement of this Act;]
h) "shamilat law" means--
i) in relation to land situated in the territory which immediately before the 1st November, 1956, was comprised in State of Punjab, the Punjab Village Common Lands (Regulation) Act, 1953; or
ii) in relation to land situated in territory which immediately before the 1st November, 1956, was comprised in State of Patiala and East Punjab NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -30- States Union; the Pepsu Village Common Lands (Regulation) Act, 1954;
i) "State Government" means the Government of the States of Punjab."
5. Thus, 'Shamlat Deh' includes all lands described in the revenue records by that term, excluding 'abadi deh', as per Section 2(g)(1).
Going simply by that definition, the land, subject matter of this petition, would be included in the term 'Shamlat Deh', unless excluded by any of the provisions contained in clauses (i) to (ix), i.e. the exclusionary clauses, given after clause 5 of Section 2(g).
If those clauses are seen, then the land in question does not get excluded, in my opinion, by any of the exclusionory clauses alone, even if it is in possession of a 'Malik Kabja', as per the term explained.
Going clause by clause, clauses (ii) and (ii-a) refer to land allotted to a displaced person; clause (iii) to 'Shamlat Deh' which has been partitioned and brought under cultivation by individual landholders before the 26th of January, 1950. Clause (iv) refers to 'Shamlat Deh' that was acquired by any person by purchase or in exchange for proprietory land, from a co-sharer before 26.01.1950 by a valid deed.
Obviously, the land in question in any case cannot fall under these clauses.
Coming to clause (v), the subject land is not described as 'Shamlat Taraf', 'Shamlat Patti', 'Shamlat Panna' or 'Shamlat Thola', so as to even examine whether it was being used for the benefit of the village community or not.
If land described by such terms was not being used for the NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -31- benefit of the village community, as in this case it is not, it would fall in the exclusionary clause. However, the subject land not having been described by any of the aforesaid terms, the second aspect, of usage, need not to be gone into.
Hence, clause (v) of Section 2(g) also does not apply to the subject land.
Clause (vi), pertaining to land being used as manure pits, house, or for cottage industry etc. also cannot include within its ambit, the subject land.
Clause (viii) however, needs to be looked at carefully, because as per this clause, land that was 'Shamlat Deh' and was assessed to land revenue and has been in the individual cultivating possession of co-sharers, not in excess of their respective shares in the ''Shamlat Deh' land, before 26.01.1950, would also be excluded from the term 'Shamlat Deh', for the purpose of vesting it in the Gram Panchayat.
In the present case, undoubtedly, the land is shown to be in the ownership (Tehat Shamlat Deh) and cultivating possession of Lekh Dass Chela Kirpa Dass, in the jamabandi for the year 1943-44, which is admitted to be the last jamabandi prior to 26.01.1950. Further, even though, vide the jamabandi for the year 1909-10, the payment of land revenue was exempted qua this land, to the 'Malak Kabja', it was still assessed to land revenue, as seen from column No.11 of the said jamabandi, and uptill that point, would be covered by clause (viii). Yet, as noticed from the Land Settlement Manual and as held by my brother, 'Malak Kabja' is an owner without a share in the 'Shamlat Deh'. Thus, he is not a co-sharer either in the village waste, or land jointly held by the village proprietory body. Therefore, not NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -32- being in cultivating possession of such co-sharer, the subject land would also not be covered by clause (viii), so as to be excluded from the term 'Shamlat Deh'.
As regards clause (ix), my learned brother has already noticed that the land is not shown to be a place where a Thakurdwara or a place of worship has been established. If that were so, it would have been described in column No.8 as 'Gair Mumkin' temple or Thakurdwara etc. and not as land which is cultivable and being cultivated.
More will be said on this issue further ahead, while discussing the impugned order of the Commissioner dated 18.03.2013.
6. One is therefore again confronted with the situation that the predecessor-in-interest of the petitioner, i.e. Lekh Dass, is individually shown to be in cultivating possession, as owner, in column No.5 of the jamabandi for the year 1943-44, however, in column No.4 he is described as the owner, 'Tehat Shamlat Deh', i.e. under the village proprietory body, thus an inferior owner.
The question then would be as to whether an inferior owner can be considered to be an owner with rights to sell the land, even with that right shown to be inherent in a 'Malak Kabja', in the Punjab Settlement Manual, in the face of the fact that w.e.f. 22.04.1961, when the Act came into effect, per se the subject land would be covered in the term 'Shamlat Deh', with no specific exclusion given for a 'Malak Kabja' in Section 2(g), as he is a cultivator but not a co-sharer in the village waste (or 'Shamlat land'). Thus, we have to consider as to whether, after the coming into effect of the Act of 1961, the term "Malak Kabja Tehat Shamlat Deh" was dropped in the jamabandi for the year 1964-65 correctly, with Ram Gopal, Chela Lekh NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -33- Dass, deemed to have come into absolute ownership of the subject land, de jure. Further, whether he could sell the land as he pleased , thereby vindicating the right conferred upon him even in terms of the interpretation given to a 'Malak Kabja' in the Settlement Manual or whether he could only do so with the permission of the superior land owner, i.e. the village proprietory body (actually after 1950, with the permission of the Panchayat, with the entry in column No.4, in the jamabandi for the year 1955-56 showing Lekh Dass to be 'Malak Kabja' 'Tehat Panchayat Deh').
Hence, it then has to be seen as to whether, after that, the land would vest in the Gram Panchayat or not, as per the Act.
7. Coming therefore to Sections 3 and 4 of the Act, which stipulate as follows.
"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;
ii) where any land has vested in a Panchayat under this NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -34- Act, but such land has been excluded from shamilat deh under sub-clause (ii-a) of clause (g) of section 2, 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 on or before the 9th day of July, 1985, revest in the person or persons to whim the land so excluded has been allotted or otherwise transferred by sale or by any other manner whatsoever, subject to the condition that--
a) any sum of money realised by the Rehabilitation Department of the Government of Punjab as a result of allotment or transfer of such land shall alongwith interest at the rate of three per cent payable from the date of such allotment or transfer; or
b) where no money was realisable by the Rehabilitation Department of the Government of Punjab as a result of allotment or transfer of such land, the amount of compensation in respect of such land as determined by the Collector of the District in which such a land is situated alongwith interest at the rate of three per cent payable from the date of allotment or transfer, as the case may be;
shall be paid by the Rehabilitation Department of the Government of Punjab to the Department of Rural Development and Panchayats for onward disbursement to the Panchayat to which such shamilat deh belonged.
3) As soon as may be, on the commencement of the Punjab Village common Lands (Regulation) Amendment Act, 1995 the Department of Rural Development and Panchayats shall make a reference to the Collector of the District to determine the amount of compensation under sub-clause (b) of clause (ii) of sub-section (2) and the NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -35- Collector of the District shall, keeping in view the market value of the shamilat deh at the times it was allotted or transferred determine the amount of compensation.]"
Section 4 of the said Act stipulates as follows:-
"4. Vesting of rights in Panchayat and non- proprietors.--
1) 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 the shamilat deh of any village and which has not vested in a Panchayat under the shamilat law shall, at the commencement of this 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 the commencement of shamilat law, be deemed to have been vested in such non-proprietor.
2) Any land which is vested in a Panchayat under the shamilat law shall be deemed to have been vested in the Panchayat under this Act.
3) Nothing contained in clause (a) of sub-section (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the:--
NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -36-
i) existing rights, title or interests of persons, who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhuopahus, Saunjidars, Muqarrirdars;
ii) rights of persons in cultivating possession of shamilat deh, for more than twelve years [immediately preceding the commencement of this Act] without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon;
iii) rights of a mortgagee to whom such land is mortgaged with possession before the 26th January, 1950."
8. Thus, all lands described as 'Shamlat Deh', as are not excluded by the exclusionary clauses of Section 2(g) and are within the ambit of the 'inclusive' clauses thereof, would vest in the Gram Panchayat, unless again excluded by Section 4 (3).
Coming therefore to Section 4(3)(ii), which protects the person in cultivating possession of 'Shamlat Deh' land for more than 12 years prior to the coming into effect of the Act.
The question again is as to whether Lekh Dass alone can be taken to be in cultivating possession of the subject land, with the land being shown as self-cultivated in column No.5 in the jamabandi for the year 1939- 40, with him under the Shamlat Deh, thereafter shown as "owner in possession" in that column, in the year 1943-44, and thereafter in the jamabandi for the year 1955-56 as already noticed, as "Tehat Panchayat Deh". Hence, for the relevant years, i.e. 12 years immediately prior to 22.04.1961, with an entry of "Malak Kabja Tehat Shamlat Deh" would Lekh Dass alone be deemed to be in cultivating possession, or would it be also the NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -37- proprietory body, shown as the superior owner, who would be deemed to be in cultivating possession?
9. Reverting back to paragraph 142 of the Settlement Manual, 'Malak Kabja' is defined to be the proprietor who is actually in possession (Kabja), even though under the superior owner, i.e. the village proprietory body. Therefore, once Lekh Dass was shown to be 'Malak Kabja', i.e. in possession, in column No.5, showing the land to be self-cultivated or, later, to be owner in possession, the entry can only refer to Lekh Dass being in possession, with primary responsibility to pay land revenue (though exempted). Thus, it would be the 'Malak Kabja' and not the superior owner in possession, i.e. not the village proprietory body.
In such a situation, would Section 4 (3)(ii) come to the rescue of the said Lekh Dass and by extension, the petitioner who is his successor-in- interest? Sub-clause (ii) lays down the rights of persons in cultivating possession of Shamlat Deh for more than 12 years immediately preceding 24.04.1961. Hence, once it is established that Lekh Dass was in cultivating possession since 1939-40, as per the revenue record shown to us by the State, then, in my opinion, he would be covered by the said clause and protected by it, 12 years prior to 22.04.1961 being uptill 23.04.1949, which is obviously a date well after 1939-40.
Hence, though I have not agreed with my learned brother on the reasoning on which the petition is to be allowed, however, in view of the fact that despite, in my opinion, the land being 'Shamlat Deh' within the meaning of Section 2(g) of the Act of 1961, the petitioners' predecessor-in- interest was entitled to the protection of Section 4(3)(ii) of the Act and consequently, once that protection was available to him, there was no NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -38- impediment to his alienating the land, in the manner that he wished to.
10. Coming to the impugned order of the learned Commissioner, dated 18.03.2013, though I have also held that the land is 'Shamlat Deh', however, the factual position, is that there is no Thakurdwara on the land, as already held by my learned brother, to the effect that if, on the land, there had been a temple/Thakurdwara, the entry would have been to that effect, in column No.5. At no point of time is a Thakurdwara mentioned either in column No.4 or in column No.5. The Thakurdwara is mentioned in the remarks column (column No.12), for the first time in the jamabandi for the year 1909-10 and thereafter, in the same column in the jamabandi for the year 1931-32. Both these entries are with regard to exemption from payment of revenue and Satluj revenue respectively, i.e. land revenue as also revenue for irrigation, on the condition that the 'Malak Kabja' (Lekh Dass) would be working for the welfare of a Thakudwara, on the condition of noble conduct. Thus, the mentioning of Thakurdwara and the 'Malak Kabjas' relationship thereto, as regards the land in question, would be for exemption of land revenue qua the land and not that the land itself had been granted to him for the establishment of a Thakurdwara.
Thereafter, in the jamabandi for the year 1959-60, there is again a mention of permanent exemption of Satluj revenue for the welfare of the Thakurdwara, with the condition of noble conduct, i.e. the same entry as was present in 1931-32, which only seems to be a repetition because the number of the letter vide which such exemption was granted, has been given in both the jamabandies (1931-32 and 1959-60) as No.144. Though in the jamabandi of 1959-60, the date given to letter No.144 is shown to be 29.01.1957, it seems to be a typographical error, as it is shown to be issued NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -39- (in the jamabandi) by the Superintendent, from the office of the Commissioner, as is also stated in the jamabandi for the year 1931-32. In any case, even if another letter was issued on 29.01.1957, with the same number, i.e. 144, it would only be a repetition of the permanent exemption from Satluj revenue, with nothing shown on the status of the ownership or cultivation of the land, to be that of a Thakurdwara.
Thus, having been under cultivation of Lekh Dass, at least since 1939-40, in my opinion, the predecessor-in-interest of the petitioner, would be covered by the protection granted by Section 4 (3)(ii), as already stated.
Hence, to that extent, I also do not find the impugned order of the Commissioner (Annexure P-13), to be sustainable, which is consequently quashed, though for different reasons than those given by my learned brother.
11. As regards the order dated 30.10.2012, of the Additional Deputy Commissioner-cum-Collector (Annexure P-12), he has held that the land is not 'Shamlat Deh'. As I have already disagreed with that reasoning, for the reasons given hereinabove, hence, though he (the Collector) had dismissed the petition filed under Section 11 of the Act of 1961, by the respondent Gram Panchayat, I would not restore his order, having disagreed with it on the reasoning given therein.
Yet, in view of the fact that, eventually, I too have held the petitioner to be protected under Section 4(3)(ii) of the Act of 1961, despite being in possession of the 'Shamlat Deh', this writ petition is allowed; the impugned order of the Commissioner dated 18.03.2013 (Annexure P-13) is quashed and the petition filed by the Gram Panchayat under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961, is dismissed, NARESH KUMAR 2016.03.03 09:38 I attest to the accuracy and authenticity of this document Chandigarh Civil Writ Petition No.9998 of 2013 -40- though not for the reason given by the Collector, in his order dated 30.10.2012.
No order as to costs.
February 5, 2016 [AMOL RATTAN SINGH]
nitin/dinesh JUDGE
NARESH KUMAR
2016.03.03 09:38
I attest to the accuracy and
authenticity of this document
Chandigarh