Punjab-Haryana High Court
Mithu Singh And Another vs Director Rural Development & Panchayat on 22 May, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rakesh Kumar Jain
Civil Writ Petition No.7438 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.7438 of 2010
Date of Order: 22nd May, 2012
Mithu Singh and another ...Petitioners
Versus
Director Rural Development & Panchayat
Department, Punjab and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Jatinder Singla, Advocate
for the petitioner.
Mr. J.S.Puri, Addl. A.G.,Punjab
for the State.
Mr. Nandan Jindal, Advocate
for Gram Panchayat-respondent no.3.
RAJIVE BHALLA, J.
The petitioners pray for issuance of a writ in the nature of certiorari for quashing orders dated 20.07.2009 (Annexure P-15) and 27.01.2010 (Annexure P-17), passed by the District Development and Panchayat Officer (exercising the powers of Collector), Sangrur and the Director Rural Development and Panchayat Department (exercising the powers of Commissioner), respectively, whereby ejectment orders have been passed against the petitioners.
Counsel for the petitioners submits that admittedly, the land is "Jumla Mushtarka Malkan Wa Diger Hakdaran Hasab Civil Writ Petition No.7438 of 2010 -2- Rasad Zare Khewat" (in short "Jumla Mushtarka Malkan"). The land is not "Shamilat Deh" and, therefore, the Gram Panchayat could not file a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act'). It is further contended that as land described as "Jumla Mushtarka Malkan" is created after applying a pro- rata cut on the holdings of proprietors and ownership thereof continues to vest in proprietors, the Gram Panchayat, at best has a right of management and control under Rule 16(ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949. The right to manage the property does not confer the status of "Shamilat Deh" upon land described as "Jumla Mushtarka Malkan". It is also contended that the land has been wrongly recorded as "Jumla Mushtarka Malkan" as it is "Bachat Land" and should, therefore, be returned to the petitioners instead of directing their eviction.
Counsel for the Gram Panchayat, on the other hand, submits that as the land belongs to the Gram Panchayat and is reserved for common purposes and even otherwise is recorded as "Silab", the petitioners have, therefore, been rightly evicted from the land in dispute. It is also argued that the land vests in the Gram Panchayat for common purposes and is "Shamilat Deh". The Gram Panchayat, therefore, rightly filed a petition under Section 7 of the 1961 Act.
Civil Writ Petition No.7438 of 2010 -3-
The questions that arise for adjudication are:
(a) whether land recorded as "Jumla Mushtarka Malkan" is "Shamilat Deh"? and If, answer to the above question is in negative,
(b) whether a petition can be filed under Section 7 of the 1961 Act (as applicable to the State of Punjab) for evicting an unauthorised occupant of land described as "Jumla Mushtarka Malkan"?
Before we proceed to answer these questions, it would be necessary to set out and appraise the statutory provisions applicable to the present controversy, namely, Sections 18(c), 23A of the East Punjab Holdings(Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the 'Consolidation Act'), and Rule 16 (ii) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949 (hereinafter referred to as the 'Consolidation Rules') and Section 7 of the 1961 Act, which read as follows:-
Section 18. Lands reserved for common purposes:-
(a) XX XX XX
(b) XX XX XX
(c) that if any area under consolidation no land is
reserved for any common purpose including extension of the village abadi, or if the land so reserved is inadequate, to assign other land for Civil Writ Petition No.7438 of 2010 -4- such purpose Section [23-A. As soon as a scheme comes into force, the management and control of all lands assigned or reserved for common purposes of the village under section 18, --
(a) in the case of common purposes specified in sub-clause (iv) of clause (bb) of section 2 in respect of which the management and control are to be exercised by the State Government, shall vest in the State Government; and
(b) in the case of any other common purpose, shall vest in the panchayat of that village;
and the State Government or the Panchayat, as the case may be, shall be entitled to appropriate the income accruing therefrom for the benefit of the village community, and the rights and interests of the owners of such lands shall stand modified and extinguished accordingly:
Provided that in case of land assigned or reserved for the extension of village abadi or manure pits for the proprietors and non- proprietors of the village, such land shall vest in the proprietors and non-proprietors Civil Writ Petition No.7438 of 2010 -5- to whom it is given under the scheme of consolidation.] Rule 16 of Consolidation Rules:
Rule 16(i) XX XX XX 16(ii) In an estate or estates where during Consolidation proceedings there is no Shamlat Deh land or such land is considered inadequate, "land shall be reserved for the village Panchayat and for other common purposes", under section 18 (c) of the Act, out of the common pool of the village 3[at the scale given in the schedule to these rules]. Proprietary rights in respect of land so reserved (except the area reserved for the extension of abadi of the proprietors and non-proprietors) shall vest in the proprietary body of estate or estates concerned and it shall be entered in the column of ownership of records rights as (Jumla Malkan wa Digar Haqdarana Arazi Hasab Rasad Raqba). The management of such land shall be done by the Panchayat of the estate or estates concerned on behalf of the village Civil Writ Petition No.7438 of 2010 -6- proprietary body and the Panchayat shall have the right to utilize the income derived from the land so reserved for the common needs and benefit of the estate or estates concerned.].
Section 7 of the 1961 Act:-
7. Power to put panchayat in possession of shamilat deh.--
(i) The Collector shall, on an application made to him by a panchayat, or by an officer, duly authorised in this behalf by the State Government by a general or special order, after making such enquiry, as he may think fit and in accordance with such procedure as may be prescribed put the panchayat in possession of the land or other immovable property in the Ishamilat deh of that village which vests or is deemed to have been vested in it under this Act and for so doing the collector may exercise the powers of a revenue court in relation to the execution of a decree for possession of land under the Punjab Tenancy Act, 1887:
Provided that if after receipt of the application and before the panchayat is put in possession of the land or other Civil Writ Petition No.7438 of 2010 -7- immovable property in the shamilat deh, a question of right, title or interest in such land or property is raised by any person and a prima facie case is made out in support thereof, the Collector shall direct the person who has raised such question to submit his claim under section 11 and till the question is so determined, the application shall remain pending:
Provided further that if the person, who has raised the question of right, title or interest, fails to submit his claim under Section 11 within the time prescribed under that section, the Collector shall presume that no question of right, title or interest is involved and shall proceed further to put the panchayat in possession of the land or other immovable property in the shamilat deh.
(2) An appeal against the order of the Collector under sub-section (1) shall lie to the Commissioner and the period of limitation for such an appeal shall be sixty days from the date of the order appealed against."
A perusal of Sections 18(c), 23A of the Consolidation Act and Rule 16(ii) of the Consolidation Rules, reveals that land Civil Writ Petition No.7438 of 2010 -8- created, during consolidation, after applying a pro-rata cut on the holdings of proprietors and reserved "..........for the village panchayat and for other common purposes under Section 18(c) of the Act........." shall be entered in the column of ownership of record of rights as "Jumla Mushtarka Malkan Wa Digar Haqdaran Arazi Hasab Rasad Raqba" ("Jumla Mushtarka Malkan"). The ownership of such land continues to vest in proprietors, whereas management and control of such land vests in the panchayat, on behalf of the village proprietory body. "Shamilat Deh", on the other hand, is common land of a village and came to vests in a Gram Panchayat upon enactment of the "Shamilat Law" i.e. Punjab Village Common Lands (Regulation) Act, 1953 and the Pepsu Village Common Lands (Regulation) Act, 1954. "Shamilat Law" was repealed and reenacted as the 1961 Act. Section 2(g) of the 1961 Act defines "Shamilat Deh"
and 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 Civil Writ Petition No.7438 of 2010 -9- 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 includes-
(i) [.....]
(ii) has been allotted on quasi-permanent basis to a displaced person;
(ii-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 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-
Civil Writ Petition No.7438 of 2010 -10-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) [.......]
(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.
[(ix) was being used as a place of worship or for purposes, subservient thereto, immediately before the commencement of this Act;]"
Section 2(g) of the 1961 Act does not include land created during consolidation by applying a pro-rata cut on the Civil Writ Petition No.7438 of 2010 -11- holdings of the proprietors, namely, "Jumla Mushtarka Malkan", within the definition of "Shamilat Deh".
We would, at this stage, like to clarify that the expression "Shamilat Deh" is not a generic definition, all types of land belonging to or entrusted to the Gram Panchayat but only defines land that has come to vest in a Gram Panchayat under the "Shamilat Law" and Sections 2(g) and 3 the 1961 Act. A Gram Panchayat may own, possess and manage different types of land. A Gram Panchayat may own "Shamilat Deh" by virtue of the "Shamilat Law" and Section 2(g) and Section 3 of the 1961 Act and other land that it may acquire in accordance with law but does not include as its property, land created during consolidation after applying a pro-rata cut on the holdings of proprietors i.e. Jumla Mustharka Malkan. We would like to make a passing reference to the fact that the State of Haryana has amended the definition of "Shamilat Deh" to include land created during consolidation, after applying a pro-rata cut on the holdings of proprietors within the definition of "Shamilat Deh" but the State of Punjab has not introduced such an amendment.
After having set out the nature and difference between "Jumla Mushtarka Malkan" and "Shamilat Deh", we shall proceed to consider the provisions of Section 7 of the 1961 Act so as to answer the second question.
Section 7 of the 1961 Act places a statutory duty upon the Collector to summarily ascertain whether the land in dispute is "Shamilat Deh", before proceeding to eject a person in occupation thereof. Section 7 of the 1961 Act, leaves no ambiguity that the Civil Writ Petition No.7438 of 2010 -12- Collector, may exercise his power of ordering eviction only if the land is "Shamilat Deh" as defined under Section 2(g) of the 1961 Act and to no other land, whether owned, possessed or managed by a Gram Panchayat. To hold otherwise, would require this Court to add words to the definition of "Shamilat Deh" set out in Section 2(g) of 1961 Act. We are, therefore, of the considered opinion that land recorded as "Jumla Mushtarka Malkan" is not "Shamilat Deh" and a Gram Panchayat , therefore, cannot invoke Section 7 of the 1961 Act to seek eviction of an occupant of such land.
Admittedly, the land, in dispute, answers to the description of "Jumla Mushtarkan Malkan" i.e. land created during consolidation, for the village panchayat and for other common purposes, after applying a pro-rata cut on the holdings of proprietors. Section 7 of the 1961 Act applies to "Shamilat Deh" alone. The Gram Panchayat, therefore, had no right to file a petition under Section 7 of the 1961 Act, seeking ejectment of the petitioners. As a necessary corollary, the Collector had no jurisdiction to entertain the petition for ejectment. The Gram Panchayat was required to file a petition by following the procedure prescribed, under the Punjab Gram Panchayat (Common Purposes Land )Eviction and Rent Recovery Act, 1976 or under the Public Premises and Land (Eviction and Rent Recovery) Act, 1973.
Before we proceed to conclude the matter, there is another aspect that would require consideration. The petitioners assert that the land in dispute has been wrongly recorded as "Jumla Mushtarka Malkan" as it is "Bachat Land". The remedy of the petitioners is to approach the Collector under Section 11 of the 1961 Civil Writ Petition No.7438 of 2010 -13- Act, in accordance with the law laid down by the Hon'ble Supreme Court in Gram Panchayat, Village Sidh v. Additional Director Consolidation of Holdings, Punjab, 1997(3) R.C.R.(Civil), 491.
In view of what has been stated hereinabove, the writ petition is allowed, the impugned orders are set aside with liberty to the Gram Panchayat to file a fresh petition under the Punjab Gram Panchayat (Common Purposes Land )Eviction and Rent Recovery Act, 1976 or the Public Premises and Land (Eviction and Rent Recovery) Act, 1973. No order as to costs.
(RAJIVE BHALLA)
JUDGE
May 22nd, 2012 (RAKESH KUMAR JAIN)
nt JUDGE