Punjab-Haryana High Court
Nirmal And Another vs State Of Punjab And Others on 4 September, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No.19418 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.19418 of 2010
Date of Order: 4th September, 2012
Nirmal and another ...Petitioners
Versus
State of Punjab and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. Balbir Singh, Advocate
for the petitioners.
Mr. J.S.Puri, Addl. A.G.,Punjab
for respondents no.1 to 3.
Mr. Sameer Sachdeva, Advocate
for Mr. Surinder Thakur, Advocate
for respondent no.4.
RAJIVE BHALLA, J.
The petitioners pray for issuance of a writ of certiorari for quashing orders dated 31.03.1999 (Annexure P-1) and 19.02.2010 (Annexure P-4), passed by the District Development and Panchayat Officer, Kapurthala (exercising the power of 'Collector') and the Director, Rural Development, SAS Nagar, Mohali, (exercising powers of 'Commissioner'), respectively.
The short point that arises for consideration is whether the Gram Panchayat has proved that the land, in dispute, which is, admittedly, recorded as "Abadi Deh", vests in the Gram Panchayat as Civil Writ Petition No.19418 of 2010 -2- "Shamilat Deh" as defined under Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act').
The petitioners are, admittedly, in possession of a parcel of land measuring 7 Kanals and 15 Marlas, bearing Khewat/Khatauni No.184/233, Khasra No.27/1, which is part of a larger chunk of land measuring 58 kanals 16 marlas bearing Khasra No.27, situated within the "Abadi Deh" of village Tayabpur, Tehsil and District Kapurthala. The Gram Panchayat filed a petition under Section 7 of the 1961 Act seeking ejectment of the petitioners. The petitioners raised a plea that as the land is "Abadi Deh", it does not vest in the Gram Panchayat. The Collector allowed the petition by placing reliance upon Section 2(g)(4)(a) of the 1961 Act, without realising that this provision, applies to "Shamilat Deh" in the State of Haryana and not to "Shamilat Deh" in the State of Punjab. An appeal filed by the petitioners was dismissed.
Counsel for the petitioner submits that the land in dispute is "Abadi Deh". The Collector has invoked Section 2(g)(4)(a) of the 1961 Act, as applicable to the State of Haryana, to hold that the land is "Shamilat Deh" and vests in the Gram Panchayat. The Collector has committed another error by equating "Abadi Deh" with "Abadi" and holding that as there is no 'Abadi' on the land, it vests in the Gram Panchayat. An earlier writ petition filed by the petitioners, was remitted to the Appellate Authority to decide the matter afresh, with a specific direction to pass a detailed order. The appellate authority has once again passed a cryptic and non-speaking order without Civil Writ Petition No.19418 of 2010 -3- dealing with the question whether the Gram Panchayat could file a petition with respect to land situated within "Abadi Deh".
Counsel for the Gram Panchayat, on the other hand, submits that vacant land within "Abadi Deh" vests in a Gram Panchayat. It is further contended that petitioners' plea that they have constructed a house, is factually incorrect as the land is being used for cultivation. It is, however, not denied that the land falls within the "Lal Lakir" and is described as "Abadi Deh".
We have heard counsel for the parties and perused the impugned orders.
As recorded in the opening paragraph, the questions that require to be answered are, whether and to what extent can a Gram Panchayat claim ownership of land within "Abadi Deh" and whether a Gram Panchayat can file a petition under Section 7 of the 1961 Act, if the land is "Abadi Deh"? The Collector has upheld the right of the Gram Panchayat to file a petition under Section 7 of the 1961 Act by holding that land, in dispute, vests in the Gram Panchayat, in view of Section 2(g)(4)(a) of the 1961 Act. The Collector was oblivious of the fact that Section 2(g)(4)(a) of the 1961 Act applies to "Shamilat Deh"
in the State of Haryana and not to "Shamilat Deh" in the State of Punjab. The Appellate Authority failed to discern this error and to say the least has passed a non-speaking order.
"Abadi Deh" of a village, is the habitation of a village, enclosed by the "Lal Lakir" and contains houses of proprietors and non-proprietors. "Abadi Deh" should not be confused with "Gair Mumkin Abadi" or "Abadi". The former expression denotes land Civil Writ Petition No.19418 of 2010 -4- within the "Lal Lakir" whereas the latter expression denotes habitation or inhabited structures. The "Abadi Deh" of a revenue estate is situated within the "Lal Lakir" and is generally assigned a single khasra number with no further demarcation of the land, except to the extent of identifying paths, ponds, chaupals, playgrounds and other land used or allotted for common purposes. The general principle of ownership, within "Abadi Deh", is that possession follows ownership. From the time of the first settlement of land, revenue officers did not demarcate land within "Abadi Deh". On enactment of the 1961 Act, "Abadi Deh" was excluded from "Shamilat Deh" and only such land within "Abadi Deh" as was used or reserved for the benefit of the village community including streets, lanes, playgrounds etc. was declared as "Shamilat Deh" Section 2(g)(1) and (4) of the 1961 Act reads as follows:-
2. Definitions.--
(g) "Shamilat deh" includes--
(1) lands described in the revenue records as shamilat deh excluding abadi deh;
(2) XX XX XX XX
(3) XX XX XX XX;
(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."
A conjoint appraisal of Section 2(g)(1) and (4) of the 1961 Act, leaves no ambiguity as to legislative intent that land within Civil Writ Petition No.19418 of 2010 -5- "Abadi Deh" is excluded from "Shamilat Deh", except to the extent provided by Section 2(g)(4) of the 1961 Act.
A perusal of the revenue record and the impugned orders reveals that the land, in dispute, is situated within "Abadi Deh" bears Khewat/Khatauni No.184/233, Khasra No.27/1 and is recorded as "Abadi Deh". A presumption, therefore, arises that the land, in dispute, does not vest in the Gram Panchayat. It was for the Gram Panchayat to prove that, though, described as "Abadi Deh", the land is "Shamilat Deh". We are conscious of the fact that we are dealing with a petition under Section 7 of the 1961 Act and neither the Collector nor the Appellate Authority were required to record a conclusive finding on the question of title, but we cannot loose sight of the fact that a pre requisite, to the filing of a petition under Section 7 of the 1961 Act, is prima-facie proof that the land vests in the Gram Panchayat, as "Shamilat Deh".
A perusal of the impugned orders and the pleadings reveals that the Gram Panchayat has neither pleaded nor proved, by reference to any prima-facie material that the land was used or reserved for the benefit of the village community for streets, lanes, playgrounds, schools, drinking wells, ponds etc. or such other similar purposes. It would, however, not be appropriate for us to record any final opinion, in the matter.
We, therefore, allow the writ petition, set aside the impugned orders and remit the matter to the Collector for adjudication afresh for deciding a question of title whether land is "Shamilat Deh" and, therefore, vests in the Gram Panchayat, after Civil Writ Petition No.19418 of 2010 -6- following the procedure prescribed, by affording an opportunity to the parties to prove their respective claims.
Parties are directed to appear before the District Development and Panchayat Officer, Kapurthala, on 10.10.2012, who shall decide the matter within three months from receipt of a certified copy of this order after following the procedure prescribed for deciding a question of title.
(RAJIVE BHALLA)
JUDGE
September 4, 2012 (REKHA MITTAL)
nt JUDGE