Punjab-Haryana High Court
Gram Panchayat vs The Joint Development ... on 27 September, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No.11306 of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) Civil Writ Petition No.11306 of 2003
Date of Order: 27th September, 2012
Gram Panchayat, Chachowal, Tehsil Nakodar,
District Jalandhar.
...Petitioner
Versus
The Joint Development Commissioner(IRD)
(exercising the power of Commissioner),
Chandigarh and others.
..Respondents
(2) Civil Writ Petition No.15724 of 2010
Karam Singh ..Petitioner
Versus
Gram Panchayat, Village Chachowal,
Tehsil Nakodar, District Jalandhar and
others.
..Respondents
(3) CRM No.M-52349 of 2003
Darshan ...Petitioner
Versus
Karam Singh and another
...Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. Harsh Bunger, Advocate
for the petitioner ( in CWP No.11306 of 2003)
for respondent No.1 (in CWP No.15724 of 2010)
Mr. R.S.Bains, Advocate
for the petitioner (in CWP No.15724 of 2010)
Civil Writ Petition No.11306 of 2003 -2-
for respondents No.3 and 4 (in CWP No.11306 of 2003)
for the respondents (in CRM No.M-52349 of 2003)
None for the petitioner (in CRM No.M-52349 of 2003).
Mr. J.S.Puri, Addl. A.G.,Punjab
for respondents No.2 and 3 (in CWP No.15724 of 2010)
for respondents no.3 and 4 (in CWP No.11306 of 2003).
RAJIVE BHALLA, J.
By way of this order, we shall decide Civil Writ Petition Nos.11306 of 2003 and 15724 of 2010, as they relate to the same land, the same parties and involve adjudication of the same questions of fact and law.
The dispute in the present case, in brief, is whether the land, in dispute, vests in the Gram Panchayat or is excluded from "Shamilat Deh", as it was in cultivating possession of respondents no.3 and 4's predecessors, prior to 26.01.1950.
Civil Writ Petition No.11306 of 2003, has been filed by the Gram Panchayat of Village Chachowal, praying for issuance of a writ of mandamus to quash order dated 23.04.2003 (Annexure P-6), passed by the Joint Development Commissioner (IRD) (exercising the power of 'Commissioner' under the Punjab Village Common Lands (Regulation) Act, 1961), accepting an appeal, filed by respondents no.3 and 4, thereby reversing an order dated 29.01.2002, passed by the Division Deputy Director, Rural Development and Panchayats (exercising the power of 'Collector', Jalandhar/Amritsar), and holding that the land, in dispute, does not vest in the Gram Civil Writ Petition No.11306 of 2003 -3- Panchayat.
Civil Writ Petition No.15724 of 2010, has been filed by Karam Singh, respondent no.3, in Civil Writ Petition No.11306 of 2003, for setting aside orders dated 18.02.2010 (Annexure P-
14) and 21.05.2010 (Annexure P-12/T), passed by the Divisional Deputy Director, Panchayat-cum-Collector, Jalandhar/ Amritsar and the Financial Commissioner, Co-operative, Punjab, Chandigarh and warrants of possession issued thereunder and to restrain the Gram Panchayat from taking forcible possession and to direct revenue authorities to enter a mutation of ownership on the basis of order dated 23.04.2003, passed by the Joint Development Commissioner.
The Gram Panchayat, filed a petition under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act') for ejectment of Karam Singh, from the land, in dispute. The private respondents filed a suit for permanent injunction, which was dismissed, on 12.05.1976, but the First Appellate Court accepted the appeal and held that as the respondents' predecessors were in cultivating possession 12 years before the 1961 Act, the Gram Panchayat has no right, title or interest in the land, in dispute. RSA No.849 of 1980, filed by the Gram Panchayat, was allowed, judgment and decree passed by the First Appellate Court was set aside and the respondents were relegated to their remedy of Civil Writ Petition No.11306 of 2003 -4- filing a petition under Section 11 of the 1961 Act. Before the respondents could file an application under Section 11 of the 1961 Act, they were dispossessed. The respondents filed a petition under Section 11 of the 1961 Act, which was dismissed by the Collector but the Appellate Authority has allowed their appeal and held that the land does not vest in the Gram Panchayat.
Counsel for the petitioner-Gram Panchayat submits that the land, in dispute, is recorded as "Shamilat Deh" before or after 26.01.1950. The Appellate Authority has ignored these entries and relied upon forged entries in jamabandi for the year 1944-45, which record that the land is in possession of Mehru and its nature is "Barani". The "Parat Patwar" of the Jamabandi for the year 1944-45 records "Shamilat Deh", "Makbuja Malkan", i.e., possession in common of proprietors and the nature of the land as "Kallar". The "Parat Patwar" does not record the name of Mehru, but a copy of the jamabandi prepared from the "Parat Sarkar" records the words "Mehru Hissadar" and the land as "Barani". A bare perusal of the certified copy produced by private respondents, prepared from the "Parat Sarkar", reveals that it has been tampered with by deleting the words "Makbuza Malkan" & "Kallar" and replacing them with the words "Makbuza Malkan Mehru" and "Barani". It is further argued that even if it is presumed that the land, in dispute, was in possession of Mehru, Civil Writ Petition No.11306 of 2003 -5- it does not fall within Section 2(g)(viii) of the 1961 Act, as there is no evidence of the extent of his share holding and payment of land revenue. It is further submitted that Civil Writ Petition No.15724 of 2010, filed by the private respondents seeking to protect their possession is infructuous as possession was taken by the Gram Panchayat, before the writ petition was filed. The other relief, namely, to record an entry in the revenue record on the basis of order passed by the Joint Development Commissioner and against warrants of possession would have to await the outcome of this writ petition.
Counsel for respondents no.3 and 4, on the other hand, submits that order passed by the Joint Development Commissioner, is legal and valid. The jamabandi for the year 1944-45, clearly records the cultivating possession of Mehru, a predecessor of the private respondents and the land as "Barani". The jamabandi proves the cultivating possession of the petitioner's predecessors before 26.01.1950. The land, therefore, does not vest in the Gram Panchayat and was rightly excluded from "Shamilat Deh", in view of Section 2(g)(viii) of the 1961 Act. The Joint Development Commissioner, Panchayats, has rightly held against the Gram Panchayat. It is further submitted that the petitioner-Gram Panchayat has levelled false and baseless allegations of tampering with the revenue record. The copy of jamabandi for the year 1944-45 was obtained from Civil Writ Petition No.11306 of 2003 -6- official record. It is further submitted that possession was wrongly taken from the answering respondents, and in case the writ petition filed by the Gram Panchayat is dismissed, an order may be passed restoring possession and directing revenue authorities to enter a mutation of ownership, in the name of private respondents.
We have heard counsel for the parties, perused the impugned orders, the pleading and revenue documents on record.
The dispute, as referred to, in the opening para of the judgment is whether the land, in dispute, is excluded from "Shamilar Deh" by virtue of Section 2(g)(viii) of the 1961 Act.
The Punjab Village Common Lands (Regulation) Act, 1954, declared that land described as "Shamilat Deh" shall vest in a Gram Panchayat. The land, in dispute, was admittedly "Shamilat Deh" in 1954 and came to vest in the Gram Panchayat. The 1954 Act was repealed and re-enacted as the 1961 Act. Section 2(g)(1 to 5) of the 1961 Act define land that is included in "Shamilat Deh" whereas Section 2(g)(i) to (ix) set out the circumstances in which such land shall be excluded from "Shamilat Deh". Section 2(g)(viii) of the 1961 Act, reads as follows:-
2. Definitions.--
(g) "Shamilat deh" includes--
Civil Writ Petition No.11306 of 2003 -7-
(1) XX XX XX
(2) XX XX XX
(3) XX XX XX
(4) XX XX XX
(5) XX XX XX
but does not includes-
(i) XX XX XX
(ii) XX XX XX
(iii) XX XX XX
(iv) XX XX XX
(v) XX XX XX
(vi) XX XX XX
(vii) XX XX XX
(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."
. The private respondents urge that the land, in dispute, is excluded from "Shamilat Deh" by virtue of Section 2
(g)(viii) of the 1961 Act and are, therefore, required to prove that:-
(a) the land was "Shamilat Deh;
(b) it was assessed for land revenue' Civil Writ Petition No.11306 of 2003 -8-
(c) was in cultivating possession of a proprietor;
(d) in accordance with a share holding, before 26.1.1950.
The Collector has recorded a finding that the land, in dispute, vests in a Gram Panchayat. The Appellate Authority has reversed this order by holding as follows:-
" I have heard the parties at length and have gone through the record carefully. In the zamabandis for the year 1944-45, 1953-54 and 1957-58 the father of the appellants Mehru has been recorded as Hissadar (Co-sharer) of the land in dispute. This entry has not been rebutted by the Gram Panchayat. Thereafter, consolidation operation had taken place in the village after the consolidation, the present appellants who are sons of Mehru are recorded as "Gair Marusi Tenant" on this land. These entires were maintained in the revenue record till the dispossession of the appellants in 1992. It shows that the appellants were in possession of the land in dispute since 1944, earlier as Hissadar and later on as " Gair Marusi Tenants".
These entries have been changed by the revenue authorities without the consent of the Civil Writ Petition No.11306 of 2003 -9- appellants. Therefore, it can be concluded that the appellants were in possession of the land continuously since 1944 without paying any rent to the Gram Panchayat. The respondent Gram Panchayat could not prove that this land was ever leased out. This case is covered under exception (viii) of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961. The Gram Panchayat is not the owner of the land. In these circumstances, the appeal is accepted and the appellants are declared owners of the land in dispute. The order dated 29.1.2002 passed by the Collector (Divisional Deputy Director (IRD), Jalandhar, is set aside." The Appellate Authority has relied upon jamabandies for the years 1944-45, 1953-54 and 1957-58, to hold that as these jamabandies record the possession of Mehru, predecessor-in-interest of the private respondents as a co- sharer and thereafter of private respondents as "Gair Marusi Tenants", it proves that the land is excluded from "Shamilat Deh"
by Section 2(g)(viii) of the 1961 Act.
The finding recorded by the Appellate Authority, in our considered opinion, is palpably incorrect. The entry in the relevant jamabandi for the year 1944-45, that one Mehru is in Civil Writ Petition No.11306 of 2003 -10- possession and as the land is "Barani", it would not automatically exclude it from "Shamilat Deh". The respondents have not adduced any evidence on record that Mehru was a co- sharer, in "Shamilat Deh" and if so to what extent. The extent of share holding is an important factor for proving exclusion of land from "Shamilat Deh" in terms of Section 2(g)(viii) of the 1961 Act. This apart, the private respondents have failed to prove payment of land revenue. The jamabandi produced by private respondents, appears to have been tampered with. At this stage, we would like to point out that the original entry is retained by the Patwari and is referred to as the "Parat Patwar". A copy is forwarded to the office of Collector and is called the "Parat Sarkar". The "Parat Patwar" and the "Parat Sarkar" should record the same entries but if, there is any material difference between the "Parat Patwar" and the "Parat Sarkar", the documents would be inherently unreliable. We have perused copies produced by the petitioner and the private respondents and are prima-facie satisfied that copy produced by private respondents "may" have been "interpolated". A copy of the "Parat Patwar" of jamabandi for the year 1944-45, retained by the patwari, does not contain any entry recording the cultivating possession of Mehru as it records the words "Makbuja Malkan"
and describes the land, in dispute, as "Kallar", whereas the copy Civil Writ Petition No.11306 of 2003 -11- obtained from the "Parat Sarkar" records "Mehru" in possession as a co-sharer and the land as "Barani". The private respondents are unable to explain this discrepancy. It would be necessary to order an enquiry into the matter. It would also be necessary to point out that in jamabandies prepared after 1944- 45, Mehru and after Mehru, the private respondents are recorded as "tenants". The Appellate Authority failed to discern that a "tenant" cannot take benefit of Section 2(g)(viii) of the 1961 Act, which is only available to proprietors.
We, therefore, allow the writ petition, set aside order dated 23.04.2003, passed by the Appellate Authority and remit the matter to the Appellate Authority for adjudication of the entire controversy afresh, on all aspects, with particular reference to the correctness of entries in the jamabandi for the year 1944-45. The Appellate Authority shall call for jamabandies maintained by the patwari and the Collector and shall also determine whether there is any interpolation in jamabandi for the year 1944-45, filed by the petitioner after affording an opportunity, to both parties, to lead evidence on all aspects of the matter.
Parties are directed to appear before the Joint Development Commissioner (IRD), on 30.10.2012.
Civil Writ Petition No.15724 of 2010, was filed for restoration of possession. The question of restoration of possession would arise only, if the appeal is decided in favour of Civil Writ Petition No.11306 of 2003 -12- the petitioner. The petition has, therefore, been rendered infructuous and is disposed of accordingly.
(RAJIVE BHALLA)
JUDGE
September ,2012 (REKHA MITTAL)
nt JUDGE