Punjab-Haryana High Court
Gram Panchayat Of Village Tulewal vs Joint Commissioner(Ird) on 26 February, 2013
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No.18665 of 1998 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) Civil Writ Petition No.18665 of 1998
Date of Order: 26th February, 2013
Gram Panchayat of Village Tulewal,
Tehsil and District Patiala.
..Petitioner
Versus
Joint Commissioner(IRD), Punjab and others
..Respondents
(2) Civil Writ Petition No.18667 of 1998
Gram Panchayat of Village Tulewal,
Tehsil and District Patiala.
...Petitioner
Versus
Joint Commissioner(IRD), Punjab and others
..Respondents
(3) Civil Writ Petition No.18526 of 1998
Gram Panchayat of Village Tulewal,
Tehsil and District Patiala
...Petitioner
Versus
Joint Commissioner(IRD), Punjab and others
..Respondents
Civil Writ Petition No.18665 of 1998 -2-
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. J.S.Bhandohal, Advocate
for the petitioners.
Ms. Vandana Malhotra, Addl. A.G.,Punjab,
for respondents no.1 and 2.
Mr. Sarjit Singh, Senior Advocate with
Mr. Amit Kashyap, Advocate,
for respondents no.3 to 5.
RAJIVE BHALLA, J (Oral)
By way of this order, we shall dispose of Civil Writ Petition Nos.18665, 18667 and 18526 of 1998, as they involve adjudication of similar questions of fact and law. For the sake of convenience, facts are taken from Civil Writ Petition No.18665 of 1998.
The Gram Panchayat of Village Tulewal, Tehsil and District Patiala, prays for issuance of a writ of certiorari quashing order dated 19.05.1998 (Annexure P-4), passed by the Joint Development Commissioner (IRD), Punjab, (exercising power of 'Commissioner'). Respondent nos.3 to 6 filed a petition under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as 'the 1961 Act'), claiming that the land, in dispute, does not vest in the Gram Panchayat. The Collector-cum- District Development and Panchayat Officer, Patiala, dismissed the petition. Aggrieved by this order, respondent nos.3 to 6 filed an appeal. The Joint Development Commissioner (IRD), Punjab, accepted the appeal, set aside the order passed by the Collector- cum-District Development and Panchayat Officer, Patiala, and Civil Writ Petition No.18665 of 1998 -3- allowed the petition filed under Section 11 of the 1961 Act, by holding that the land, in dispute, does not vest in the Gram Panchayat.
Counsel for the petitioner-Gram Panchayat submits that the Collector, exercising power under Section 11 of the Punjab Village Common, rightly held that the land, in dispute, vests in the Gram Panchayat. The Joint Development Commissioner-cum- Commissioner, has reversed this order by holding that as the land was "Banjar Qadim" on 09.01.1954 and was not used, as per revenue record, for any common purposes, it does not vest in the Gram Panchayat. The finding is factually and legally incorrect as the learned Commissioner was required to consider the quality of the land as on 04.05.1961 (date of coming into force of the 1961 Act) and not on 09.01.1954. The learned Commissioner has also ignored the "Wajib-ul-Arz", which clearly records that "Shamilat" land of the village can be used for grazing of cattle, i.e., a common purpose. The Commissioner has also erred in holding that as the land is "Shamilat Deh Hasab Rasad Zare Khewat", it cannot be termed as "Shamilat Deh". It is submitted that the words "Shamilat Deh" and not "Hasab Rasad Zare Khewat", denote the common land of a village. The words "Hasab Rasad Zare Khewat" merely denote the manner in which share holdings of proprietors were to be calculated, before the land came to vest in the Gram Panchayat. The learned Commissioner has also recorded a strange finding that private respondents have been in continuous and uninterrupted possession over the land, in dispute.
Counsel for the private respondents, however, submits Civil Writ Petition No.18665 of 1998 -4- that finding recorded by the Appellate Authority is legal and valid. The land, in dispute, was "Banjar Qadim" on coming into force of the Pepsu Village Common Lands (Regulation) Act, 1954 (hereinafter referred to as 'the 1954 Act'), and as it was not used for common purposes of the village, as per the revenue record, it does not vest in the Gram Panchayat. Counsel for the petitioner relies upon a Full Bench of this Court in Gram Panchayat Sadhraur v. Baldev Singh and others, 1977 PLJ 276. It is further submitted that as the land is recorded as "Shamilat Deh Hasab Rasad Zare Khewat", it belongs to proprietors. Section 2(g)(1) of the 1961 Act uses the expression, "Shamilat Deh" but as the land is described as "Shamilat Deh Hasab Rasad Zare Khewat", it does not vest in the Gram Panchayat. It is also contended that as the land is recorded in possession of "Makbuja Malkan", the land has rightly been held to be in possession of proprietors and is, therefore, excluded from "Shamilat Deh".
We have heard counsel for the parties and perused the impugned order.
The controversy in the present case is whether the land, in dispute, vests in the Gram Panchayat or in the private respondents. The Collector has held that the land vests in the Gram Panchayat, whereas the Appellate Authority has held to the contrary by recording a finding that as the land, in dispute, was "Banjar Qadim" on 09.01.1954 (the date of coming into force of the 1954 Act) and as it was not used, as per the revenue record, for any common purpose, it does not vest in the Gram Panchayat. The Appellate Authority has also held that as the land, in dispute, is Civil Writ Petition No.18665 of 1998 -5- "Shamilat Deh Hasab Rasad Zare Khewat", it is not "Shamilat Deh".
The questions, that primarily call for an answer are (a) the relevant date for proving that the land was "Banjar Qadim" and not used as per the revenue record for common purposes, (b) whether the land, in dispute, which was, admittedly, "Banjar Qadim" was used or not used for any common purposes of the village so as to include or exclude it from "Shamilat Deh" and (c) whether land described as "Shamilat Deh Hasab Rasad Zare Khewat" is included in "Shamilat Deh", as defined under Section 2(g) (1) of the 1961 Act.
The first two questions are inter-linked and, shall therefore, be answered together. A brief reference to the two statutes, that provide for vesting of "Shamilat Deh" in a Gram Panchayat, would be necessary.
The "Shamilat Deh" (common land) of a village, was owned and generally possessed by proprietors, who were entitled to sell, mortgage and otherwise deal with "Shamilat Deh" in any manner, they deemed appropriate. The common land of a village was represented by the expression "Shamilat Deh" and was followed by expressions like "Hasab Rasad Zare Khewat" etc. The latter expression denoted the manner of calculating share holdings of proprietors, in "Shamilat Deh".
Vast tracts of "Shamilat Deh" were barren or uncultivated and, therefore, recorded as "Banjar Qadim". As a general rule, "Banjar Qadim" land was used for grazing of cattle and was recorded in proprietary possession of the proprietary body, by the words "Makbooja Malkan". The manner, in which the common land of a Civil Writ Petition No.18665 of 1998 -6- village is to be used, is recorded in a revenue document called the "Wajib-ul-Arz", which records the rules and regulations of a village, governing not only the use of common land but also various other aspects of village life. A "Wajib-ul-Arz" is part of the "record of rights", prepared under the Punjab Land Revenue Act, 1887. A presumption of truth attaches to a "Wajib-ul-Arz", under Section 44 of the said Act.
The Pepsu Village Common Lands (Regulation) Act, 1954 came into force on 09.01.1954. Section 3 of the 1954 Act declared that "Shamilat Deh" of a village shall vest in a Gram Panchayat. Section 3 of the 1954 Act did not provide any exception, from this statutory vesting of "Shamilat Deh" in a Gram Panchayat, by reference to its quality or possession of proprietors etc. as subsequently provided by the 1961 Act. Section 3 of the 1954 Act brought to an end the rights, titles and interests held by proprietors in "Shamilat Deh", thereby enabling the Gram Panchayat to exercise proprietary and possessory rights, and allowing non proprietors to participate in the use of "Shamilat Deh". The 1954 Act was, however, held to be ultravires in Munsha Singh v. State of Punjab, 1959 I.L.R. 589 and was, thereafter, repealed. The 1961 Act was enacted, on 04.05.1961. Section 2(g)(1) of the 1961 Act assigns a detailed definition of "Shamilat Deh". The relevant provision of Section 2(g) of the 1961 Act, read as follows:-
2. Definitions.--
(g) "Shamilat deh" includes--
Civil Writ Petition No.18665 of 1998 -7-(1) Lands described in the revenue records as Shamilat deh or Charand excluding abadi deh"
(2) XX XX XX (3) XX XX XX (4) XX XX XX (4a) XX XX XX (5) lands in any village described as banjar qadim and used for common purposes of the village, according to revenue records;
Section 3 of the 1961 Act, which provides for vesting of "Shamilat Deh" in a Gram Panchayat, reads as follows:-
"Section 3. Lands to which this Act applies.-- (1) This act shall apply and before the commencement of this Act the Shamilat Law shall be deemed always to have applied to all lands which are shamilat deh as defined in clause(g) of section 2."
Section 3(1) of the 1961 Act saves the statutory vesting of "Shamilat Deh" in a Gram Panchayat, as declared by the 1954 Act, and has to be read to declare that "Shamilat Deh" of a village that came to vest in a Gram Panchayat under the 1954 Act, shall continue to so vest, except if it is excluded in accordance with the definition of "Shamilat Civil Writ Petition No.18665 of 1998 -8- Deh" contained in Section 2(g) or Section 4 of the 1961 Act. Thus, if a person claims that a particular parcel of land is excluded from "Shamilat Deh", by reference to any clause of Section 2(g) or any other provision of the 1961 Act, he would be required to prove the ingredients, of the exclusion clause, as on the date of the enactment of the 1961 Act, i.e., 4.5.1961, or on other dates set out in Section 2(g) and Section 4 of the 1961 Act. Though, we have answered the first question, it would be necessary to record that the first question, that relates to the date on which ingredients of Section 2(g)(5) of the 1961 Act have to be proved, came up for consideration in Civil Writ Petition No.6727 of 2007, decided on 30.03.2012 (Gram Panchayat, Kalwa v. The Joint Development Commissioner (IRD), Punjab, Chandigarh and others). After considering the provisions of the 1954 Act and the 1961 Act, it was held as follows:-
"A conjoint reading of Section 2(g)(i), Section 3 and Section 4 of the 1961 Act, reveals that all land described as "Shamilat Deh" came to vest in Gram Panchayat by virtue of the 1954 Act and only such "Shamilat Deh" is excluded, from vesting in a Gram Panchayat, as it provided for by Section 2(g) or Section 4 of the 1961 Act. The 1961 Act has retrospective operation only to Civil Writ Petition No.18665 of 1998 -9- the extent provided by Section 3. Section 3(1) and 3(2)(i) of the 1961 Act reads as follows:-
"3. Lands to which this Act applies.-- (1) This act shall apply and before the commencement of this Act the Shamilat Law shall be deemed always to have applied to all lands which are shamilat deh as defined in clause (g) of section 2".
[(2) Notwithstanding anything contained in sub-
section(1) of Section 4,--
(i) where any land has vested in a Panchayat under the Shamilat law, but such land has been excluded from shamilat deh under clause (g) of section 2 other than the land so excluded under sub-clause (ii-a) of that clause, all rights, title and interest of the panchayat in such land as from the commencement of the Punjab Village Common Lands (Regulation) Amendment Act, 1995, shall cease and all such rights, title and interest shall vest in the person or persons in whom they were vested, immediately Civil Writ Petition No.18665 of 1998 -10- before the commencement of the shamilat law;
(3) XX XX XX XX"
A landowner, claiming that his land is excluded from "Shamilat Deh", shall be required to prove the ingredients of the exclusion clause, from the date set out, in the clause so invoked. Where, however, an exclusion clause does not set out any date, the landowner could be required to prove the ingredients, of the exclusion clause, as on the date of enactment of the 1961 Act i.e. 4.5.1961".
Counsel for the petitioner is unable to point out any error in the ratio of this judgment . Thus, if a Gram Panchayat or a person claims that "Banjar Qadim" land is included in or excluded from "Shamilat Deh", by reference to Section 2(g)(5) of the 1961 Act, they would be required to prove the ingredients of Section 2(g)(5) of the 1961 Act as on 04.05.1961, i.e., the date of enforcement of the 1961 Act. The first question is answered accordingly.
The private respondents were, therefore, required to prove and the Appellate Authority was required to record a finding whether the land was "Banjar Qadim" and not used for any common purpose on 04.05.1961. The Appellate Authority Civil Writ Petition No.18665 of 1998 -11- has, however, recorded a finding that as the land was "Banjar Qadim" and not used for any common purpose in 1954, it does not vest in the Gram Panchayat. As referred to above, the Appellate Authority was required to decide this question by reference to 04.05.1961 but as the finding has been recorded by reference to 1954, we have no hesitation in holding that the Appellate Authority has committed an error of jurisdiction and of law.
The second question is whether the land, which is "Banjar Qadim", was used as per the revenue record for any common purpose.
Section 2(g)(5) of the 1961 Act, provides that "Banjar Qadim" land shall be included in "Shamilat Deh" if it is used for any common purpose, according to the revenue record. Section 2(g)(5) of the 1961 Act, contains, both, an inclusion and an exclusion clause. If the land is used for common purposes, as per the "revenue record", the land shall be included in "Shamilat Deh" but if it is not so used, it shall be excluded from "Shamilat Deh".
The expression "revenue record" used in Section 2(g) (5) of the 1961 Act refers to any relevant revenue document. The document, that generally records the manner in which "Banjar Qadim" land shall be used, is called the "Wajib-ul-Arz", i.e, a document that sets out the rules and regulations of a Civil Writ Petition No.18665 of 1998 -12- village community. The Appellate Authority has not referred to any revenue document while recording its finding that the land was not used for any common purpose. The petitioner has appended, a copy of the "Wajib-ul-Arz", as Annexure P-2, with the writ petition. A relevant extract from the "wajib-ul-arz" reads as follows:-
Wazabul-Arz Village Tulewal Chak-Paud teh & Distt. Patiala(Pb.) 1 2 3 No. Subject Rawaz Dehi
1. Shamlat Land, its cultivation The total area of Shamilat Deh is 1458-16 and management and its income which has been mutated in the name of the Nagar Panchayat as per the Govt.
instruction. Its cultivation and produce is the responsibility is that of member Nagar Panchayat.
2. Now during consolidation an area of 397-13 has been reserved over which the villagers graze their cattle. Neither any special condition has been laid down nor any one can change its nature (Nautor).
The "wajib-ul-arz" clearly records that "Shamilat Deh"
has been reserved for grazing of cattle. The land is, admittedly, recorded as "Shamilat Deh". The entry in the "wajib-ul-arz" that "Shamilat Deh" shall be used for grazing of cattle, therefore, puts paid to the private respondents' plea that "Banjar Qadim"
land was not used for any common purpose. The finding recorded by the Appellate Authority is incorrect and contrary to the "revenue record".
The third question is whether land described as Civil Writ Petition No.18665 of 1998 -13- "Shamilat Deh Hasab Rasad Zare Khewat" is included in "Shamilat Deh" as defined by Section 2(g)(1) of the 1961 Act. Counsel for the private respondents contends that the land, in dispute, is "Shamilat Deh Hasab Rasad Zare Khewat" but as Section 2(g)(1) of the 1961 Act uses the expression "Shamilat Deh", the land, in dispute, is excluded from "Shamilat Deh".
As referred to before, the common land of a village is identified by the words "Shamilat Deh". The expression "Shamilat Deh" is the generic term that defines and denotes the common land of a village. A tract of land is described as "Shamilat Deh" as it is set apart for common use, by proprietors. The expression "Hasab Rasad Zare Khewat" does not qualify, add to or explain the meaning of the expression "Shamilat Deh"
but merely denotes the mode and manner of calculating the share holdings of proprietors in "Shamilat Deh" prior to the enactment of the 1954 Act or the 1961 Act. An expression that merely denotes the manner of calculating the share holdings of proprietors cannot determine whether land is or is not "Shamilat Deh". A large number of similar expressions are used by revenue authorities to indicate the manner of calculating share holdings, namely, by reference to land revenue paid, the number of ploughs in a village etc. These expressions cannot be construed to indicate anything other than the mode of calculating share holdings of proprietors. If land is described as Civil Writ Petition No.18665 of 1998 -14- "Shamilat Deh" whatever be the expressions that follow the words "Shamilat Deh", the land would be included in "Shamilat Deh". A reference in this regard may be made to the following Division Bench judgments of this Court:- Kashmir Singh and others v. Joint Development Commissioner(IRD) Punjab, Chandigarh and others,(Civil Writ Petition No.11722 of 1999, decided on 26.04.2006); Sita Ram etc. v. Gram Panchayat Ismaila etc.(Civil Writ Petition No.9368 of 2007 , decided on 12.06.2007); and Bhag Singh v. State of Punjab and others (Civil Writ Petition No.8577 of 2002, decided on 06.07.2012).
An argument raised, more in desperation than with any conviction, is that as proprietors were in possession, duly reflected by the words "Makbuja Malkan" prior to 1950, the land is excluded from "Shamilat Deh". The argument is misconceived. Section 2(g)(iii) and (viii) of the 1961 Act exclude only such "Shamilat Deh" as was in cultivating possession of proprietors, prior to 26.01.1950. Section 2(g)(iii) and (viii) of the 1961 Act read as follows:-
2. Definitions.--
(g) "Shamilat deh" includes--
(1) XX XX XX
(2) XX XX XX
(3) XX XX XX
(4) XX XX XX
(5) XX XX XX
Civil Writ Petition No.18665 of 1998 -15-
but does not includes-
(i) [.....]
(ii) XX XX XX
(ii-a) XX XX XX
(iii) has been partitioned and brought under cultivation by individual landholders before the 26th January,1950."
(iv) XX XX XX
(v) XX XX XX
(vi) XX XX XX
(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."
The land was, admittedly, "Banjar Qadim", i.e., fallow and uncultivated, even as per the case set up by private respondents. There is, therefore, no question of the land, in dispute, either being put to cultivation or being in cultivating possession of the petitioners prior to 1950 or 12 years before the enactment of the 1961 Act, so as to exclude it from "Shamilat Deh". The Appellate Authority, as such, has committed serious error of law, while ignoring provisions of the 1954 Act, the 1961 Civil Writ Petition No.18665 of 1998 -16- Act, entries in the "Wajib-ul-Arz" as well as relevant jamabandies thereby wrongly reversing the order passed by the Collector.
In view of what has been stated hereinabove, the writ petition is allowed, the impugned order dated 19.05.1998 (Annexure P-4) is set aside and the order passed by the Collector-cum-District Development and Panchayat Officer, whereby the petition filed under Section 11 of the 1961 Act, was dismissed, is restored. No order as to costs.
(RAJIVE BHALLA)
JUDGE
February 26th, 2013 (REKHA MITTAL)
nt JUDGE