Punjab-Haryana High Court
Nahar Singh And Ors. vs The Additional Director, ... on 13 December, 1991
Equivalent citations: (1993)105PLR188
JUDGMENT V.K. Jhanji, J.
1. This order of mine will dispose of Civil Writ Petition No. 7000 of 1987, Civil Writ Petition No. 1365 of 1988 and Criminal Misc. 9309-M of 1990.
2. Civil Writ Petition No. 7000 of 1987 has been preferred by the right-holders of village Longowal Tehsil and District Sangrur whereas Civil Writ Petition No. 1365 of 1988 has been filed by the Municipal Committee, Longowal. Both the writ petitions have been filed for quashing of the order dated 22.5.1987 passed by the Additional Director, Consolidation of Holidays, Punjab, Jalandhar, on a petition filed by the right-holders under Section 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act).
3. The right-holders of village Longowal claim that they along with others, are the owners of Land in village Longowal and are co- sharers of Land shown as Mushtarqa Malkan and land shown as Shamilat Deh, Hasab Rasad Zar Khewat. As per case of the right-holders, conolidation in the village took place about more than 30 years back and during consolidation proceedings, a pro rata cut was imposed on the rights of the right-holders and this way land was carved out for using the same for common purposes i.e. paths etc. and after using the said land for common purposes, a large track of land was reserved surplus as a Bachat Land. Consolidation authorities, while implementing the reparatition failed to distribute the same amongst the right-holders and the same was left as Mushtarka Malkan Deh and Gram Panchayat was shown as manager and owner of the same. Apart from Mushtarka Malkan land, there was a track of Shamilat Deh. The said land was kept in a separate Khewat and the same was shown as Hasab Rasad Zar Khewat and in possession of the right-holders.
4. As per admitted case of the parties, the Gram Panchayat was never constituted but keeping in view the population of the village, a notified area Committee was constituted in the year 1945 and thereafter in the year 1960 Municipality was formed for the area which was previously adminstered by the Notified Area Committee. The right-holders of the village apprehending that the Municipal Committee may not eject them from the land in dispute or transfer the same to any other persons, filed a petition under section 42 of the Act before the Director, Consolidation of Holdings, Punjab who entrusted the same to the Additional Director of Consolidation for decision. In the application, it was stated that the right-holders of the village are the original owners of the land in dispute and the Municipal Committee has nothing to do with the same. They also prayed that the land in dispute be distributed amongst the right-holders as per their share in the respective Khata. The petition was contested by the Municipal Committee who claimed to be in possession of the land measuring 365 kanal lying within the limits of municipal area. The Municipality also claimed that it is managing the common land and utilising its income for the development of the entire town area and so it should be allowed to remain with the Municipal Committee. The Additional Director, Consolidation of Holdings, vide impugned order (Annexure P-1) allowed the petition under Section 42 of the Act in part after finding that land measuring 728 K - 4 M shown as Jumla Mushtarka Malkan and land measuring 309 K - 9 M shown as Maqbooja Malkan is available in the revenue estate. He further found that Mqbooja Malkan land cannot be transferred in favour of the Municipal Committee and Jumla Mushtarka Malkan land is also required to be partitioned amongst the right-holders. However, out of the total land, land measuring 365 Kanal lying within the municipal area was allowed to remain with the Municipal Committee. Right holders in Civil Writ Petition No. 7000 of 1937 have challenged that part of the order of the Additional Director, Consolidation of Holdings, Punjab, vide which he allowed the Municipal Committee to manage land measuring 365 Kanal whereas Municipal Committee in Civil Writ Petition No. 1365 of 1988 has challenged the order of the Additional Director, Consolidation of Holdings, Punjab where the land apart from 365 Kanal has been allowed to be partitioned amongst the right-holders.
5. Mr. Jasbir Singh, Advocate, learned counsel for the right- holders contended that in the village, Gram Panchayat was never constituted and as such there was no question of vesting the ownership of Mushtarka Malkan and Shamilat Deh land in the Gram Panchayat. The rightholders remained throughout the owners and in possession of the land. He further contended that there is no such law on the basis of which the Municipal Committee can claim the land in dispute.
6. On the other hand, learned counsel for the Municipal Committee contended that in view of the right-holders own saying the land in question was shown in the name of the Gram Panchayat of the village as Manager and owner of the same. So, the land in question rightly vested in the Municipal Committee when the same was constituted in the year 1960. The precise argument now raised by the counsel for the Municipal Committee was raised in Civil Writ Petition No. 8541 of 1976 (Gram Panchayat Nasroli v. State of Punjab and Ors., 1984 P.L.J. 112 ) and the argument was repelled in the following terms:-
"It was then argued by Sh. A.N. Mittal, learned counsel for the Municipal Committee that Section 4 of the Punjab Gram Panchayat Act and Rule 3 of the Punjab Gram Panchayat Rules, 1965 (for short the Rules) divests the Gram Panchayat of the ownership of its land which came to be included within the Municipal limits. It will be apposite at this stage to reproduce the relevant statutory provisions:-
'Punjab Gram Panchayat Act, 1952:-
Section 4(3). If whole of the Sabha area is included in an urban estate to which the provisions of the Punjab Municipal Act, 1911, are applicable or in a City, Municipality & Cantonment or notified area under any law for the time being in force, the Sabha and the Gram Panchayat for that area shall cease to exist and the assets and liabilities of the Gram Panchayat shall be disposed of in the prescribed manner.' Punjab Gram Panchayat Rules, 1956:
Rule 3. Disposal of assets and liabilities of Gram Sabha - If the whole of the Sabha area is included in a municipality, Cantonment or notified area all rights, obligations, property, assets and liabilities, if any, whether arising out of any contract or otherwise shall vest in the Municipal Committee, Cantonment Board or Notified Area Committee, as the case may be."
Sub-section (3) of Section 4 provides that when the whole of the Sabha Area is included in a municipality, the Sabha and the Gram Panchayat of that area cease to exist. Their juristic personality come to an end. In that case, the assets and liabilities of Gram Panchayat have to be disposed of. For that purpose a provision was made in Rule 3 that when the whole of the Sabha area is included in a municipality then all the rights, obligations, property, assets and liabilities, if any, shall vest in the Municipal Committee. Previously there was a proviso to this rule that land which vested in the Panchayat under the Punjab Village Common Lands (Regulations) Act, 1961 or the lands, the management and control of which vested in the Panchayat under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1949 shall revert to the co-sharers and the owners thereof. This proviso, however, was deleted in January, 1976. The effect was that after January, 1976 when a Gram Sabha or Gram Panchayat ceased to exist, under Section 4(3) the immovable property including the shamilat deh and the other lands under the management and control of the Gram Panchayat shall vest in the Municipal Committee. The condition precedent, however, for the application of Sub-section (3) of Section 4 ibid and Rule 3 of the Rules is the inclusion of the whole of the Sabha Area within the municipal limits. It is only then that the Gram Sabha and the Gram Panchayat cease to exist. By partial inclusion of the Sabha area, the Gram Sabha or the Gram Panchayat remain very much alive, their existence does not come to an end. They do not cease to be juristic persons. Whatever properties are owned by the Gram Panchayat, they remain within its ownership. The areas which are included in the municipal limits cease to be amenable to the provisions of the Punjab Gram Panchayat Act. The Gram Panchayat loses its jurisdiction over that area. They come to be administered by the Municipal Committee in accordance with the Punjab Municipal Act but that does not affect the title of the Gram Panchayat or the other private individuals and juristic persons. The lands remain the property of the Gram Panchayat. Similar controversy arose before the Mysore High Court. It was observed by a Division Bench of that Court in Smt. Manorama v. Jayabore Gowda and Anr., A.I.R. 1969 Mysore 263 as under:-
"Ownership of certain land which had already vested in the Government under the provisions of Land Acquisition Act, held, could not get divested by inclusion thereof within the municipal limits of the Corporation under Sections 3(9) and 3-B of the City of Bangalore Municipal Corporation Act. The Government's power to transfer the land to another did not cease on such inclusion. By inclusion of an area under the said provisions, only power which could vest in the Corporation was the power of Municipal Administration and to apply to the said area all notifications, rules, bye-laws, orders, directions and the like made under the Act and to levy and collect imposts created under the Corporation Act. Such inclusion did not make the Corporation its owner."
It is apparent from the above observation of the Division Bench of that Court that by inclusion of property within the limits of a municipality, the owner is not divested of its ownerships the property shall remain the property of the owner and only the power of municipal administration comes to vest in the municipality and it can apply to all the notifications, bye-laws, rules etc. to the land included."
7. It is not disputed before me that only a part of the land he. 365 kanals is lying within the area of Municipal Committee whereas the remaining land is in the area of Gram Sabha. Learned counsel for the Municipal Committee, on the strength of Sub-section (3) of Section 4 of the Act, contended that the land in dispute vested in Municipal Committee when the same was constituted in the year 1960. I find no force in this argument of learned counsel for the Municipal Committee. The condition precedent for the application of Sub-section (3) of section 4 of the Act is inclusive of whole Sabha area within municipal limits. By partial inclusion of Sabha area within municipal limits, Gram Sabha and Gram Panchayat could not cease to be juristic persons and thus, property vesting in the Gram Panchayat or Gram Sabha would continue to vest in the Gram Sabha and not in the Municipal Committee. For this I also find support from Division Bench judgments of this Court as reported in Rajinder Singh Sarpanch v. Deputy Commissioner Gurgaon, (1989-2)98 P.L.R. 555 and Mrs. Renuka Sekhon v. The State of Punjab,3, (1990-2) 98 P.L.R. 58.
8. Faced with this situation, learned counsel for the Municipal Committee contended that the Additional Director, Consolidation of Holdings, Punjab, has recorded a finding of fact that land measuring 365 Kanals is within the municipal limits and the Municipal Committee being the owner of the same is entitled to manage the same. In support of this argument he has placed reliance on Section 56 of the Punjab Municipal Act which reads as under :-
"56. Property vested in committee-
(1) Subject to any special reservation made or to any special conditions imposed by the State Government, all property of the nature hereinafter in this section specified and situated within the municipality, shall vest in and be under the control of committee, and with all other property which has already vested or may hereafter vest in the committee, shall be held and applied by it for the purposes of this Act, this is to say:-
(a) to (e) xxxx xxx xxx xxx
(f) all land or other property transferred to the committee by the Government or acquired by gift, purchase or otherwise for local public purposes."
9. This argument of learned counsel for the Municipal Committee is also devoid of any merit because there is nothing on the record to show that the land in dispute was ever transferred to the Municipal Committee. Learned counsel for the Municipal Committee has frankly conceded that this land was neither purchased by the Municipal Committee nor was the same ever gifted to it by the right-holders. Thus, the finding of the Additional Director, Consolidation of Holdings to the extent be allowed the land measuring 365 Kanal to remain with the Municipal Committee, cannot be sustained.
10. Accordingly, Civil Writ Petition No. 7000 of 1987 is allowed. Order of the Additional Director, Consolidation of Holdings, Punjab (Annexure P-1) to the extent it allowed the Municipal Committee the land measuring 365 kanal is quashed and it is held that the land in dispute does not vest in the Municipality and continues to be under the ownership of the right-holders who are entitled to get the same partitioned according to their respective shares. The Consolidation Officer shall now determine the shares of the right-holders and partition the same according to their respective shares.
11. Consequently, civil writ petition No. 1365 of 1988 is dismissed.
12. Criminal Misc. No. 93039-M is also dismissed the same having become infructuous.
13. Parties are left to keen their own costs.