Punjab-Haryana High Court
Dhian Singh And Others vs The Director on 16 May, 2013
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No.1195 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No.1195 of 2012
Date of Decision:16th May, 2013
Dhian Singh and others Petitioners
Versus
The Director, Rural Development and Panchayat,Punjab
and others ..Respondents
Civil Writ Petition No.1283 of 2012
Joginder Singh Petitioner
Versus
The Director, Rural Development and Panchayat,Punjab
and others. ..Respondents
Civil Writ Petition No.5936 of 2012
Raghu Nath Singh Petitioner
Versus
The Director, Rural Development and Panchayat,Punjab
and others. ..Respondents
AND
Civil Writ Petition No.9072 of 2012
Ravi Kanta Petitioner
Versus
The Director, Rural Development and Panchayat,Punjab
and others. ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS.JUSTICE REKHA MITTAL
Civil Writ Petition No.1195 of 2012 2
Present: Mr. R.S.Chauhan, Advocate, for the petitioners.
(in CWP Nos.1195, 5936 and 9072 of 2012)
Mr. R.K.Dadwal, Advocate, for the petitioner
(in CWP No.1283 of 2012)
Mr. Rajinder Goyal, Additional Advocate General,
Punjab for respondent nos. 1 and 2.
Mr. Satbir Rathore, Advocate, for respondent no.3.
RAJIVE BHALLA, J.
By way of this order, we shall dispose of Civil Writ Petition nos. 1195, 1283, 5936 and 9072 of 2012, as they involve adjudication of similar questions of fact and law.
The petitioners, in Civil Writ Petition Nos.1195, 1283 and 5936 of 2012 pray for issuance of a writ in the nature of certiorari for quashing of orders passed by the Director, Rural Development and Panchayat, Punjab, Chandigarh, Hoshiarpur, holding that the land in dispute, vests in the Gram Panchayat, whereas the petitioner in Civil Writ Petition No.9072 of 2012 prays that orders passed by the Collector and the Commissioner holding that the land, in dispute, vests in the Gram Panchayat, may be set aside. A brief narrative of the facts of each case would be appropriate.
CWP No.1195 of 2012
Counsel for the petitioners submits that as land measuring 20Kanals-07Marlas is recorded, as "Shamilat Deh Hasab Rasad Zare Khewat" and in the column of cultivation, in possession of one Sarno, in jamabandis for the years 1943-44 and 1952-53, the land, in dispute, does not vest in the Gram Panchayat. It is further Civil Writ Petition No.1195 of 2012 3 submitted that Sarno was in possession as an occupancy tenant and upon enactment of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (hereinafter referred to as the "1952 Act"), was conferred proprietary rights. The land, in dispute, was inherited by his widow Rano Devi, who sold the land to the petitioners, vide registered sale deed dated 29.4.1980. During his life time, Sarno inducted one Babu Ram as a tenant, who, in turn, inducted one Mela Ram as a sub tenant. After purchase of the land, the petitioners filed a suit, for ejectment under the Punjab Tenancy Act, 1887 (hereinafter referred to as "the 1887 Act"), before the Assistant Collector 1st Grade, Dasuya. The suit was decreed on 31.12.1981. Mela Ram filed an appeal. The Collector, Hoshiarpur, dismissed the appeal but held that though the land is recorded in the name of `Gram Panchayat', in jamabandi for the year 1961-62, but as Sarno was an occupancy tenant, he became a proprietor under Section 3 of the 1952 Act and upon his demise, his proprietary rights, devolved upon Rano Devi, who then sold the land to the petitioners. The Collector, thus, held that the petitioners, and not the Gram Panchayat, are owners of the land, in dispute.
The petitioners, therefore, filed a petition, under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the "1961 Act"), claiming ownership. The Gram Panchayat opposed the petition. The Collector allowed the petition and held that the land, in dispute, does not vest in the Gram Panchayat. The Appellate Authority has allowed the appeal by ignoring order dated 15.6.1982, passed by the Collector and held Civil Writ Petition No.1195 of 2012 4 that Gram Panchayat is the owner. It is further argued that as the land, in dispute, is recorded as "Shamilat Deh Hasab Rasad Zare Khewat", it vests in proprietors and not in the Gram Panchayat. The Collector rightly held that as Sarno was in possession, prior to 26.1.1950, the land is excluded from "Shamilat Deh" under Section 4 (3)(ii) of the 1961 Act. The Appellate Authority has wrongly reversed this finding, without referring to the documents on record that clearly prove that as the land was in cultivating possession of Sarno, twelve years prior to enactment of the 1961 Act, it is excluded from "Shamilat Deh" under Section 4(3)(ii) of the 1961 Act.
Counsel for the Gram Panchayat submits that order dated 15.6.1982, passed by the Collector, under the 1887 Act, holding that Sarno was an occupancy tenant, who perfected his occupancy rights as owner, is irrelevant as the Gram Panchayat was not impleaded as a party to these proceedings. It is further submitted that a declaration of proprietary rights, vis-a-vis, an occupancy tenant can only be granted by a civil court. Furthermore, a finding on a question of ownership, recorded in summary proceedings of eviction, is not binding, before the forum, conferred with power to decide a question of ownership, i.e., the Collector, exercising power under Section 11 of the 1961 Act. The order passed by the Collector, in eviction proceedings, under the 1887 Act, does not bind the Gram Panchayat or authorities, under the 1961 Act. It is further submitted that as Sarno is recorded, in possession, as a tenant, he is not protected by Section 4(3)(ii) of the 1961 Act and his legal heirs had no right to sell the land, admittedly, owned by the Gram Panchayat. Civil Writ Petition No.1195 of 2012 5 It is further argued that the "expression" "Shamilat Deh Hasab Rasad Zare Khewat", denotes the "Shamilat Deh" of village Behamawa, Tehsil Mukerian, District Hoshiarpur.
Before we proceed to answer the questions posed, it would be appropriate to briefly refer to the facts of the other cases, particularly, with respect to the nature of the land, in dispute.
CWP No.1283 of of 2012 The petitioner purchased land measuring 19Kanals-02 Marlas from Rano Devi, widow of Sarno, vide sale deed dated 26.9.1980 and, in essence, raises the same pleas as in Civil Writ Petition No.1195 of 2012, i.e., protection of Section 4(3)(ii) of the 1961 Act, on the premise that Sarno, the husband of Rano Devi, is recorded in cultivating possession for a period of 12 years, prior to commencement of the 1961 Act.
CWP No.5936 of of 2012 The petitioner purchased the land, in dispute, measuring 19Kanals-02 Marlas from Rano Devi, widow of Sarno, vide sale deed dated 26.9.1980 and, in essence, raises the same pleas as in Civil Writ Petition No.1195 of 2012, i.e., protection of Section 4(3)(ii) of the 1961 Act, on the premise that Sarno, the husband of Rano Devi, is recorded as in cultivating possession, for a period of 12 years, prior to commencement of the 1961 Act.
CWP No. 9072 of 2012
Counsel for the petitioner submits that the land, in dispute, measuring 216 Kanals-08 Marlas, being ½ share of land measuring 432 Kanals 16 Marlas, was in possession of the Civil Writ Petition No.1195 of 2012 6 petitioner's predecessor, i.e., Munshi Ram son of Jangi Ram, prior to 26.1.1950. The land is, therefore, excluded from "Shamilat Deh"
under Section 2(g) and Section 4(3)(ii) of the 1961 Act. The Collector has, however, dismissed the petition by holding that as the Gram Panchayat is recorded as owner in the relevant jamabandi and the parentage of Munshi Ram, i.e., the person, recorded, in possession, is not proved, the petitioner cannot be granted any relief. The appeal has been dismissed summarily, without perusing the record and by committing the same error that was committed by the Collector. It is further argued that as Munshi Ram is, admittedly, the petitioners' father and recorded in possession, prior to 26.1.1950, the writ petition may be allowed and the impugned orders may be set aside.
We have heard counsel for the parties, perused the impugned orders as well as the paper book and have no hesitation in dismissing the writ petitions.
The common question that arises for adjudication, in these writ petitions, is - whether the land, in dispute, is excluded from "Shamilat Deh" by Section 4(3)(ii) of the 1961 Act as urged in CWPs No.1195, 1283 and 5936 of 2012 and by Section 2(g) and Section 4 (3)(ii) of the 1961 Act, as urged in CWP No.9072 of 2012.
The positive case set up by the petitioners, in Civil Writ Petition Nos. 1195, 1283 and 5936 of 2012, who are all vendees from the widow of Sarno, is that as Sarno was an occupancy tenant, in cultivating possession, twelve years prior to enactment of the 1961 Act, the land, in dispute, is excluded from "Shamilat Deh" and, accordingly, from vesting in the Gram Panchayat, by Section 4(3)(ii) Civil Writ Petition No.1195 of 2012 7 of the 1961 Act. The petitioners also contend that as Sarno was an occupancy tenant, he was conferred proprietary rights, under the 1952 Act as affirmed by the Collector, in his order passed under the 1887 Act. The Gram Panchayat, therefore, cannot claim ownership of the land, in dispute.
We would, at the outset, deal with the plea raised under Section 4(3)(ii) of the 1961 Act. Section 4(3) of the 1961 Act reads as follows:
"4 Vesting of rights in Panchayat and non-proprietors.-
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interests whatever in the land,----
(a) which is included in the shamilat deh of any village and which has not vested in a Panchayat under the shamilat law shall, at the commencement of this Act, vest in a Panchayat constituted for such village, and where no such Panchayat has been constituted for such village, vest in the Panchayat on such date as a Panchayat having jurisdiction over that village is constituted;
(b) which is situated within or outside the abadi deh of a village and which is under the house owned by a non-
proprietor, shall, on the commencement of shamilat law, be deemed to have been vested in such non-proprietor. (2) Any land which is vested in a Panchayat under the Civil Writ Petition No.1195 of 2012 8 shamilat law shall be deemed to have been vested in the Panchayat under this Act.
(3) Nothing contained in clause (a) of sub-section (1) and in sub-section (2) shall affect or shall be deemed ever to have affected the.-
(i) existing rights, title or interests of persons, who though not entered as occupancy tenants in the revenue records are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhuopahus;
(ii) rights of persons in cultivating possession of shamilat deh, for more than twelve years, immediately preceding the commencement of this Act, without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon."
Section 4 of the 1961 Act, bears the title "Vesting of rights in a Panchayat and non-proprietors." Section 4(1)(a) of the 1961 Act postulates that `notwithstanding anything to the contrary contained in any other law, agreement, instrument, custom or usage or any decree etc. all rights, title and interest whatsoever in the land, which is included in "Shamilat Deh" of a village and has not vested in a panchayat under the "Shamilat Law", shall, at the commencement of the 1961 Act, vest in a Panchayat'. Section 4(1)
(b) provides that `land within or outside the "Abadi Deh" of a village, which is under the house owned by a non-proprietor, shall, upon commencement of "Shamilat Law", be deemed to have vested in Civil Writ Petition No.1195 of 2012 9 such non-proprietors'. Section 4(3)(2) provides that `land vested in a Panchayat under the "Shamilat law" shall be deemed to have vested in the Panchayat under the 1961 Act.' Section 4(3)(ii) of the 1961 Act, is an exception to Section 4(3)(1) and (2) and provides that `nothing contained in clause (a) of sub-section(1) and in sub-section(2) of Section 4 shall affect or shall be deemed ever to have affected the rights of persons in cultivating possession of Shamilat Deh, for more than 12 years immediately preceding the commencement of this Act, without payment of rent or by payment of charges not exceeding the land revenue and cesses payable thereon. Thus, a person, claiming benefit under Section 4(3)
(ii) of the 1961 Act, is required to prove, by reference to the revenue record or such other clear and cogent evidence (a) his "cultivating possession for more than 12 years" before the commencement of the 1961 Act, and (b) non-payment of rent or payment of charges not exceeding land revenue and cesses payable thereon.
The petitioners draw their title from a sale deed executed by Rano Devi, who, in turn, draws her rights from Sarno. The positive case set up by the petitioners is that Sarno was in possession as an occupancy tenant, on payment of rent. As referred to hereinbefore, Section 4(3)(ii) of the 1961 Act, applies to a person, who is in cultivating possession, "without payment of rent or by payment of charges not exceeding land revenue and cesses payable thereon", thereby excluding from its operation a person who is in possession as a tenant. The petitioners' plea is that Sarno was a tenant, thereby excluding Sarno, his widow, and the petitioners, from Civil Writ Petition No.1195 of 2012 10 any benefit under Section 4(3)(ii) of the 1961 Act.
The argument that as the Collector, Hoshiarpur, has declared the petitioners as owners of the land, in dispute, the Additional Deputy Commissioner-cum-Collector could not uphold that the Gram Panchayat is owner of the land, in dispute, merits rejection, firstly, on the ground that the Gram Panchayat was not impleaded as a party in proceedings that led to order dated 8.9.2006 and secondly, on the ground that order dated 08.9.2006 was passed by the Collector, in exercise of his summary power, to evict a tenant. A finding on a question of title recorded by a forum conferred with summary powers, is not binding upon the forum statutorily empowered to adjudicate a dispute, regarding title, in this case, the Collector, exercising power under Section 11 of the 1961 Act. The order of eviction passed by the Collector, under the 1887 Act cannot be pressed into service, to divest the Gram Panchayat of its ownership or to confer proprietary rights upon the petitioners. It would also be appropriate to point out that Section 13 of the 1961 Act prohibits any forum or court from entertaining a plea, on a question, whether land vests or does not vest in a Gram Panchayat. The only forum empowered to declare, whether land vests or does not vest in a Gram Panchayat, is the Collector exercising power under Section 11 of the 1961 Act. The occupancy tenancy of Sarno or his ownership under the 1952 Act or the finding of ownership recorded, in the order passed by the Collector, while exercising powers of a revenue officer/court, under the 1887 Act, does not divest the Gram Panchayat of its rights.
Civil Writ Petition No.1195 of 2012 11
Apart from the aforementioned findings, Civil Writ Petition No.1283 of 2012 titled as "Joginder Singh versus The Director, Rural Development and Panchayat, Punjab and others" and Civil Writ Petition No 5936 of 2012 "Raghu Nath Singh versus The Director, Rural Development and Panchayat, Punjab and others", involve another significant fact that puts paid to the plea of ownership raised under Section 4(3)(ii) of the 1961 Act. A relevant condition for the applicability of Section 4(3)(ii) of the 1961 Act is the `cultivating possession' of a person, who claims exclusion of land from "Shamilat Deh". The land, in dispute, is, admittedly, recorded, in the relevant revenue record as "Banjar Qadim", i.e., land that has remained fallow for eight or more harvests. It is, therefore, apparent that land purchased by the petitioners was not in "the cultivating possession" of Sarno or Rano Devi, (the petitioners' vendor) during a period of twelve years prior to enactment of the 1961 Act. Thus, even if we were to ignore that Sarno was a tenant, the petitioners are not entitled to any relief, as the land, in these writ petitions, was "Banjar Qadim", that had remained fallow for eight or more harvests, and was, therefore, not in "cultivating possession". The petitioners have not led any evidence to rebut the revenue entries recording the land, in dispute, as "Banjar Qadim" during the period of twelve years prior to enactment of the 1961 Act.
As regards Civil Writ Petition No. 9072 of 2012 "Ravi Kanta versus The Director, Rural Development and Panchayat, Punjab and others", the petitioner alleges that Munshi Ram, his father, and before him, Jangi Ram son of Kapura, his predecessor- Civil Writ Petition No.1195 of 2012 12 in-interest, were in `cultivating possession' of the land, in dispute, in accordance with their share holdings, the land, therefore, does not vest in the Gram Panchayat whether under Section 2(g) or Section 4 (3)(ii) of the 1961 Act. In support of his plea that Munshi Ram was in `cultivating possession', the petitioner refers to jamabandis. A person, claiming exclusion, from "Shamilat Deh", as a proprietor, is required, under Sections 2(g)(iii) and (viii) of the 1961 Act, to prove that he or his predecessors were in `cultivating possession', prior to 26.1.1950 and in the case of a non-proprietor is required to prove `cultivating possession', 12 years before the commencement of the 1961 Act, under Section 4(3)(ii) of the 1961 Act. A perusal of jamabandis for the years 1950-51 (Annexure P-1) and 1987-88 (Annexure P-2) reveal that the land, in dispute, is recorded as`Banjar Qadim', i.e., land that has remained fallow for eight or more harvests and was not in `cultivating possession' of the petitioner or his predecessors. The petitioner, therefore, can not avail the benefit of Section 2(g)(iii) or (viii), or Section 4(3)(ii) of the 1961 Act, as these provisions, as a pre-condition, exclude only such land from "Shamilat Deh" as was in `cultivating possession'. In the absence of any evidence that the land was being cultivated, the mere fact that persons recorded in possession, were predecessors of the petitioner, or were co-sharers, in the "Shamilat Deh", the land cannot be excluded from "Shamilat Deh" either under Section 2(g)(iii) or (viii) or under Section 4(3)(ii) of the 1961 Act, for want of any documentary evidence of `cultivating possession', prior to 26.1.1950 Civil Writ Petition No.1195 of 2012 13 or 12 years before the commencement of the `1961 Act'.
As a consequence of the above discussions, we have no hesitation in holding that the land, in dispute, is "Shamilat Deh", that vested in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1953 ("Shamilat Law") and is not excluded from "Shamilat Deh" under any provision of the 1961 Act.
In view of what has been stated hereinabove, the impugned orders are affirmed and the writ petitions are dismissed, with no orders as to costs.
( RAJIVE BHALLA ) JUDGE ( REKHA MITTAL ) th 16 May, 2013 JUDGE VK