Punjab-Haryana High Court
Prem Singh And Others vs The Commissioner on 22 November, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No.2556 of 1985 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.2556 of 1985
Date of Order:22nd November, 2012
Prem Singh and others ...Petitioners
Versus
The Commissioner, Ambala Division,
Ambala and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. R.S.Mittal, Advocate, for
Mr. C.S.Singh, Advocate,
for the petitioners.
Mr. Deepak Girotra, AAG, Haryana
for respondent Nos.1 to 3.
None for respondent no.4
RAJIVE BHALLA, J.
The petitioners pray for issuance of a writ of certiorari quashing orders dated 04.06.1984(Annexure P-3), 08.04.1985 (Annexure P-4) and 19.04.1985(Annexure P-5), passed by the Assistant Collector Ist Grade, Sonepat, the Collector, Sonepat and the Commissioner, Ambala Division, Ambala, respectively.
Bhagwana, father of the petitioners, filed a suit before Senior Sub Judge, Sonepat, under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act'), for a declaration that the land, in dispute, is "Shamilat Panna, Hasab Rasad Raqba Khewat, and does not vest in the Gram Panchayat as it is not used, as per the revenue record, for benefit of the entire village community or a part thereof or for common purposes of the village. The Gram Panchayat filed a reply Civil Writ Petition No.2556 of 1985 -2- denying these averments. The suit was, eventually transferred to the Assistant Collector Ist Grade, Sonepat. The Assistant Collector Ist Grade, Sonepat, framed issues and after parties led evidence, dismissed the suit by holding that the petitioners have failed to prove their ownership. Aggrieved by this order, the petitioners filed an appeal. The Collector, Sonepat, dismissed the appeal. The petitioners, thereafter, filed a revision before the Commissioner, Ambala Division, Ambala, which was also dismissed.
Counsel for the petitioners submits that the land, in dispute, does not vest in the Gram Panchayat as the "Sharat-wajib-ul-arz" of 1909-10 clearly records that khasra no.1190, the number of the land, in dispute, before consolidation, was exclusively reserved by proprietors for grazing their cattle. The "Sharat-wajib-ul-arz" further states that proprietors, alone, shall be entitled to use the land for grazing their cattle, whereas non-proprietors would be required to pay a fixed amount of money. The "Sharat-wajib-ul-arz" prepared after consolidation in 1955-56, reveals that the land, in dispute, was not included in land reserved for grazing of cattle. According to the relevant jamabandi, the land, in dispute, is owned by "Shamilat Panna Hasab Rasad Khewat" and is in self cultivation of proprietors. The petitioners, and their father Bhagwana are proprietors and as the land, in dispute, is not used for any common purpose much less for benefit of the entire village community or a part thereof for common purposes, it is excluded from "Shamilat Deh" by virtue of Section 2(g) (3) and (v) of the 1961 Act. It is further contended that a Full Bench of this Court has held in Gram Panchayat, Sadhraur v. Baldev Civil Writ Petition No.2556 of 1985 -3- Singh and another, 1977, PLJ, 276, that "Shamilat Panna, Taraf or Patti" vests in a Gram Panchayat as "Shamilat Deh" only if it is used according to the revenue record for common purposes of all sections of the village population including proprietors and non-proprietors but as the land, in dispute, was not used, as per the revenue record for common purposes, it is excluded from "Shamilat Deh".
No one has put in appearance on behalf of respondent no.4-Gram Panchayat.
We have heard counsel for the petitioners, perused the impugned orders, entries in the "Sharat-wajib-ul-arz" appended as Annexures P-1 and P-2, respectively, and have no hesitation in affirming the impugned orders.
Before we proceed to examine the merits of the arguments, addressed by counsel for the petitioners, we would like to point out that "Sharat-wajib-ul-arz" for the year 1909-10, cannot be pressed into service as after 1909-10, two to three settlements of land were affected and a new "Sharat-wajib-ul-arz" was prepared, in each settlement. This apart, the clause in the "Sharat-wajib-ul-arz" that confined user of "Shamilat Deh" to proprietors and non-proprietors were required to pay for its user was rendered irrelevant, after enactment of the Punjab Village Common Lands (Regulation) Act, 1953 (hereinafter referred to as 'the 1953 Act'). The 1953 Act declared that all land, described as "Shamilat Deh", shall, without exception, vest in a Gram Panchayat. The 1953 Act extinguished all rights, title or interest that a person may have held in "Shamilat Deh", whether conferred by any agreement, instrument, custom, usage or Civil Writ Petition No.2556 of 1985 -4- by any decree or order of any court or other authority. Section 3 of the 1953 Act reads as follows:-
3. Vesting of rights in panchayat and in non-
proprietors-
Nothwithstanding anything contained in any other law for the time being in force, and notwithstanding any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title or interest whatever in the land:-
(a) which is included in shamilat deh of any village, shall on the appointed date, vests in panchayat having jurisdiction over the village;
(b) which is situated in the Abadi deh of a village and which is under the house owned by a non-
proprietor, shall at the commencement of the Act, vest in the said non-proprietor".
The non-obstante clause, appearing in Section 3 of the 1953 Act, brought to an end any right, title or interest that proprietors may have had in "Shamilat Deh". The mode and manner of vesting of "Shamilat Deh" and its user, prescribed in revenue documents, prior to 09.01.1954, were rendered irrelevant as henceforth ownership and user of such land was to be determined by the 1953 Act. The entries in the "Sharat-wajib-ul-arz" relating to ownership and user of "Shamilat Deh" by proprietors and non- proprietors were, therefore, no longer relevant. The 1953 Act was, Civil Writ Petition No.2556 of 1985 -5- however, repealed and re-enacted as the 1961 Act. Section 3 of the 1961 Act provides that the 1961 Act shall apply and before the commencement of the 1961 Act, the Shamilat law (the 1953 Act) shall be deemed always to have applied to all such lands which were "Shamilat Deh" except to the extent excluded by various clauses of Section 2(g) of the 1961 Act. Section 2(g) of the 1961 Act reads as follows:-
Section 2(g) reads as follows:-
2. Definitions.--
(g) "Shamilat deh" includes--
(1) Lands described in the revenue records as Shamilat deh or Charand 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 situated within the sabha area as defined in clause (mmm) of section 3 of Civil Writ Petition No.2556 of 1985 -6- the Punjab Gram Panchayat Act, 1952, excluding lands reserved for the common purposes of a village under section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under Section 23-A of the aforesaid Act;] (4a) vacant land situate in abadi deh or gorah deh not owned by any person;] (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) becomes or has become shamilat deh due to river action or has been reserved as shamilat in villages subject to river action except shamilat deh entered as pasture, pond or playground in the revenue records;
(ii) has been allotted on quasi-permanent basis to a displaced person;
(ii-a) was shamilat deh, but , has been allotted Civil Writ Petition No.2556 of 1985 -7- to any person by the Rehabilitation Department of the State Government, 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 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;
(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) [.......] Civil Writ Petition No.2556 of 1985 -8-
(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) is being used as a place of worship or for purposes, subservient thereto;
(6) lands reserved for the common purposes of a village under section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (East Punjab Act 50 of 1948), the management and control whereof vests in the State Government under Section 23-A of the aforesaid Act.
Explanation:- Lands entered in the column of ownership of record of rights as "Jumla Malkan Wa Digar HaqdaranArazi Hassab Rasad", "Jumla Malkan" or Mushtarka Malkan" shall be shamilat deh within the meaning of this section;]
(h) "shamilat law" means--
(i) in relation to land situated in which Civil Writ Petition No.2556 of 1985 -9- immediately before the 1st November, 1956, was comprised in the State of Punjab, the Punjab Village Common Lands (Regulation) Act, 1953; or
(ii) in relation to land situated in which immediately before the 1st November, 1956, was comprised in the State of Patiala and East Punjab States Union, the Pepsu Village Common Lands (Regulation) Act, 1954:
(i) "State Government", means the Government of the State of (Haryana)."
A perusal of the impugned orders particularly the "Sharat- wajib-ul-arz" reveals that land, in dispute, was reserved as "Charand" i.e. a grazing ground. Section 2(g)(1) of the 1961 Act prescribes that land described as "Charand" (a grazing ground), shall be included in "Shamilat Deh". As on the day of coming into force of the 1953 Act, the land was, admittedly, being used as a pasture, it vested in the Gram Panchayat, firstly, under Section 3 of the 1953 Act and thereafter, under Section 2(g)(1) of the 1961 Act. The petitioners' plea that as the "Sharat-wajib-ul-arz" for the year 1955-56 records that "Charand" shall only be used by proprietors and non-proprietors would be required to pay charges has been raised, in complete disregard to Section 3 of the 1953 Act and Sections 2(g)(1) and Section 3 of the 1961 Act. The petitioners' argument that as the land Civil Writ Petition No.2556 of 1985 -10- is "Shamilat Panna" and is used only by proprietors for grazing, based upon Section 2(g)(3) and (v) of the 1961 Act and entries in "Sharat-wajib-ul-arz" for the year 1955-56, in our considered opinion, has been advanced by ignoring the provisions of Sections 3 and 4 of the 1953 Act.
Section 2(g)(1) of the 1961 Act, clearly, provides that land used as "Charand" (pasture) shall vest in a Gram Panchayat. The clauses of Section 2(g) are to be read separately and not collectively as each clause provides for separate situation in which "Shamilat Deh" shall be included or excluded from "Shamilat Deh". Where, however, the land is "Charand", it is included in "Shamilat Deh" by Section 2(g)(1) of the 1961 Act and whether it is described as "Panna, Patti, Thola or is Banjar Qadim" or as any other variety, it would not be excluded from "Shamilat Deh", under any of the other clauses of Section 2(g) of the 1961 Act. Section 2(g)(1) of the 1961 Act is an independent sub-section that postulates an automatic inclusion of "Charand", in "Shamilat Deh". An argument advanced by counsel for the petitioners, based upon a Full Bench judgment of this court titled Gram Panchayat, Sadhraur v. Baldev Singh and another, (supra), that "Shamilat Panna, Patti, Taraf" would only vest in a Gram Panchayat if it is used according to the revenue record for common purposes of all sections of the village population, including proprietors and non-proprietors, in our considered opinion, does not arise in the present case as the land, in dispute, is, admittedly, "Charand". The fact that the "Sharat Waji-Ul-Arz" records that land shall be used by proprietors whereas non-proprietors shall be Civil Writ Petition No.2556 of 1985 -11- required to make a fixed payment, clearly indicates that the land was to be used for common purposes of the entire village community. The fact that non-proprietors would be required to pay charges to proprietors, in our considered opinion, is insufficient to raise an inference that the land is excluded from "Shamilat Deh" on the basis of the law laid down in the judgment in Gram Panchayat, Sadhraur v. Baldev Singh and another (supra). This apart, the argument disregards the vesting of "Shamilat Deh", in a Gram Panchayat, under the 1953 Act as with the coming into force of the 1953 Act, "Shamilat Deh", of whatever description and nature came to vest in a Gram Panchayat, without any exception. The land, admittedly, being "Charand", vested in a Gram Panchayat, and its management and use no longer depended upon entries in the "Sharat Waji-Ul-Arz". The right to use "Shamilat Deh" was henceforth governed by the 1953 Act, as affirmed and amended by the 1961 Act. The authorities under the 1961 Act have rightly held that as land, in dispute, was, "Charand", the petitioners have no right, title or interest therein. The concurrent findings of fact recorded by authorities under the 1961 Act, do not suffer from any error of jurisdiction or of law, as would require interference.
In view of what has been stated hereinabove, the writ petition is dismissed. No order as to costs.
(RAJIVE BHALLA)
JUDGE
November 22nd ,2012 (REKHA MITTAL)
nt JUDGE