Punjab-Haryana High Court
Bal Kishan And Others vs State Of Punjab And Others on 6 July, 2012
Bench: Rajive Bhalla, Rakesh Kumar Jain
CWP No.8103 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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CWP No.8103 of 2010
Date of Decision:06 .07.2012
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Bal Kishan and others
. . . .Petitioners
Versus
State of Punjab and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA
HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.Mukand Gupta, Advocate,
for the petitioners.
Mr.Manoj Bajaj, Addl. A.G. Punjab,
for respondents No.1 and 2.
None for respondent No.3.
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RAKESH KUMAR JAIN, J.
The petitioners have challenged the vires of Section 42A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (herein referred to as 'the Act') and have also prayed for quashing of the impugned order dated 25.4.2008 (Annexure P-15), passed by the Director, Rural Development & Panchayat Department, Punjab, exercising the powers of Commissioner, under the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the 1961 Act') and for issuance of a direction to declare the petitioners to be owners of land measuring 297 kanals 5 marlas, in view of decision of this Court in the case of "Jai Singh Versus State of Haryana" 2003 (2) PLR 658.
CWP No.8103 of 2010 -2-
Insofar as the question of vires of Section 42A of the Act is concerned, the said prayer of the petitioners was rendered infructuous in view of the following order dated 26.5.2011: -
"This writ petition was put up before this Bench on account of petitioners' laying challenge to the vires of Section 42-A of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short, the Act). The said provision was brought into the Statute vide Punjab Act No.6 of 2007. Besides as above, the petitioners have also laid challenge to an order dated 25.4.2008 (P15), passed by the Director Rural Development and Panchayat (exercising the powers of Commissioner under the Punjab Village Common Lands (Regulation) Act, 1961, rejecting their prayer to declare them as owners of the land in dispute.
In view of an order dated 20.5.2011 passed by a Division Bench of this Court in CWP No.15509 of 2007 titled as Mahatam Singh and others v. State of Punjab and others, challenge to the vires of Section 42-A of the Act has become infructuous.
So far as challenge to the order, mentioned above is concerned, let this matter be put CWP No.8103 of 2010 -3- up before learned Single Judge, as per roster."
After the case was put up for adjudication on merits, the following order was passed by this Court on 23.4.2012: -
"Counsel for the petitioners prays for time to place evidence on record to show that the land in their possession was created after applying a pro-rata cut on the holdings of proprietors but was thereafter not reserved, earmarked or used for any common purposes and, therefore, has to be returned to the proprietors. The petitioners shall also place on record proof of their status as proprietors and their share holdings.
Adjourned to 24.5.2012."
In pursuance of the aforesaid order, the petitioners moved an application, i.e., CM No.7467 of 2012, in order to place on record documents, Annexures P-17 to P-19. The application was allowed on 24.5.2012 and the documents, Annexures P-17 to P-19, were taken on record. It is pertinent to mention that petitioners filed an application under Section 11 of the 1961 Act, in respect of land measuring 297 kanals 5 marlas, which was dismissed by the Collector-cum-Divisional Deputy Director, Panchayat on 3.3.2004. The appeal was also dismissed by the Director, Rural Development & Panchayat Department, Punjab, exercising the powers of Commissioner, under the 1961 Act, vide its order dated 25.4.2008, with the following observations:- CWP No.8103 of 2010 -4-
"From the perusal of the record of lower Court, I have reached to this conclusion that the appellants had filed a suit in the Civil Court for permanent injunction regarding the cut of trees. The Hon'ble Civil Court while deciding this case had restrained the respondent Gram Panchayat from cutting the trees and directed that public auction notice be given for increasing the funds. The decision of this case does not have any significance for the appellants. The mutation was sanctioned in the name of Gram Panchayat in the year 1965 and since then Gram Panchayat is owner of the same. The appellants did not produce any Court order or record regarding the sanction of mutation wrongly and the mutation, which has been made in favour of Panchayat in the year 1965, is correct. The appellants have also failed to produce Jamabandi for the year 1944-45 and 1954-55, from which it is proved that in these Jamabandis they have been shown as proprietors of this land. In the jamabandi for the year 1958-59 also there is no entry regarding the ownership in the CWP No.8103 of 2010 -5- name of appellants. After the Jamabandi for the year 1958-59, a jamabandi for the year 1982-83 has been produced in this case. According to the same, the owner of this land is Gram Panchayat and the kind of lot of land has been described as Gair Mumkin Gadda Khad, Gair Mumkin Abadi, Gair Mumkin Hadda Rori, Gair Mumkin Cremation Ground (Shamshan Bhumi), Gair Mumkin Chappar (Pond).
The land of such kind is used for common purposes and no body can claim his right over this land. Besides this, over some land Bagh Singh and others have been shown in the colum of cultivator, but in column No.9 they have been shown as Chakotedar (leaseholder). As per settled law, a leaseholder can never challenge the ownership of the Panchayat. Even though, this appeal has been filed by only one family. Only single family is demanding the ownership of 297 kanals 5 marlas of land, which is legally wrong.
The land in dispute is used for common purposes. The appellants did not produce any such evidence that after pro-rata cut on their land, the same was CWP No.8103 of 2010 -6- included in the disputed land. The control and management of the land in dispute is with Gram Panchayat. The owner of the land in dispute is Gram Panchayat. There is no weight in the appeal, hence the same is hereby dismissed."
Counsel for the petitioners has argued that as per order dated 24.5.2012, passed by this Court, he had placed on record documents, Annexures P-17 to P-19, in order to prove that the land in their possession was created after applying a pro-rata cut on their holdings and was not thereafter reserved, earmarked or used for any common purposes.
On the other hand, counsel for the respondents has submitted that document Annexure P-17 is the jamabandi for the year 2007-2008 and Annexures -18 & P-19 are the report of the auction of Shamilat lands, which is sufficient to prove that the land in their possession was created after applying a pro-rata cut and is reserved, earmarked or used for any common purposes.
We have heard both the counsel for the parties and have perused the record with their able assistance.
On 23.4.2012, counsel for the petitioners was provided an opportunity to adduce material in order to show:- that the land in their possession was created after applying a pro-rata cut on their holding, the land was not reserved or earmarked or used for any common purposes, proof of the status of the petitioners, as proprietors and their shareholdings but all that has been placed on record are documents Annexures P-17 to P-19. Out of these documents, Annexure P-17, is jamabandi for the year 2007-2008, which shows that the Gram Panchayat is the owner and is in CWP No.8103 of 2010 -7- cultivation whereas documents, Annexures P-18 and P-19, are proceedings of auction of the Shamilat land for the year 2010-2011.
The petitioners have miserably failed to prove their status as proprietors and their shareholdings in the land in question. They have also not proved that the land depicted in jamabandi (Annexure P-17), is the same, which has been created after applying a pro-rata cut on their holding as proprietors. Moreover, it has been observed by the learned Commissioner that the petitioners have failed to produce jamabandi for the year 1944-45 and 1954-55, to prove that they are proprietors or in possession of the land in question. Rather, it has come on record that land in dispute is owned by Gram Panchayat, which has been used for the benefit of the village much less for common purposes as Gair Mumkin Gadda Khad, Gair Mumkin Abadi, Gair Mumkin Hadda Rori, Gair Mumkin Cremation Ground (Shamshan Bhumi) and Gair Mumkin Chappar (Pond). In the absence of any evidence, either brought before the Courts below or before this Court, despite opportunities having been given, the petitioners have not succeeded in proving their title over the land in dispute.
In view of the above discussions, we do not find any merit in the present writ petition and hence the same is hereby dismissed.
(RAKESH KUMAR JAIN) JUDGE (RAJIVE BHALLA) JUDGE 06.07.2012 Vivek