Punjab-Haryana High Court
Gram Panchayat Vill Mulepur vs Prem Singh & Ors on 16 February, 2015
Author: Raj Mohan Singh
Bench: Surya Kant, Raj Mohan Singh
CWP No.2141 of 1986 & other connected cases 1
309+453+648
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision: 16.02.2015
1. CWP No.2141 of 1986
Gram Panchayat Village Mulepur ......Petitioner
Versus
Prem Singh and others .....Respondents
2. CWP No.5177 of 1995
Gram Panchayat Village Mulepur ......Petitioner
Versus
The Joint Development Commissioner (IRD), Punjab & others
.....Respondents
3. CWP No.7887 of 1997
Gram Panchayat Village Mulepur ......Petitioner
Versus
Joint Development Commissioner (IRD), Punjab & others
.....Respondents
4. CWP No.7888 of 1997
Gram Panchayat Village Mulepur ......Petitioner
Versus
Joint Development Commissioner (IRD), Punjab & others
.....Respondents
5. CWP No.7889 of 1997
Gram Panchayat Village Mulepur ......Petitioner
Versus
Joint Development Commissioner (IRD), Punjab & others
.....Respondents
MOHMED ATIK
2015.02.18 12:45
I attest to the accuracy and
authenticity of this document
CWP No.2141 of 1986 & other connected cases 2
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr. S.S. Rangi, Advocate
for the petitioner in CWP No.2141 of 1986.
Mr. Gurcharan Singh, Advocate
for the petitioner(s) in CWP No.5177 of 1995
and CWP Nos.7887, 7888 & 7889 of 1997.
Mr. Aman Bahri, Addl. A.G., Punjab.
Mr. Rajiv Kataria, Advocate
for respondents No.2 & 3 in CWP No.2141 of 1986.
Mr. Baljinder Singh, Advocate
for respondent No.2 in CWP No.5177 of 1995.
Mr. Anshuman Chopra, Advocate for
Mr. Amarjit Markan, Advocate
for respondent(s) in CWP Nos.7887, 7888 & 7889 of 1997.
****
1. Whether Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
RAJ MOHAN SINGH, J.
Vide this common order we propose to dispose of CWP Nos.2146 of 1986, 5177 of 1995, 7887, 7888 and 7889 of 1997 as common question of law is involved in these cases. The facts are taken from CWP No.2146 of 1986.
[2]. Petitioner(s)-Gram Panchayat seeks quashing of orders dated 06.10.1982 and 27.12.1985 (Annexures P-4 & P-5), passed by Collector-cum-DDPO Patiala and Joint Director, Panchayats, Punjab respectively, exercising the powers under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the '1961 Act').
[3]. Before adverting to the rival claims of the parties, it would MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 3 be necessary to pin down brief facts.
[4]. Predecessors-in-interest of respondents No.1 to 3 filed a petition under Section 11 of the 1961 Act for declaration of their title in respect of 86 Kanal 17 Marla of land as detailed in para 1 of the writ petition. On earlier occasion the petitioner-Gram Panchayat resorted to proceedings under Section 7 of the 1961 Act which was dismissed by the Collector, Bassi, holding that the petitioner was not entitled to seek possession of the suit land as the possession of the respondents was found to be more than 12 years old. [5]. The petitioner-Gram Panchayat filed appeal before the Commissioner and the same was accepted. The predecessors-in- interest of the private respondents challenged the order of Commissioner in CWP No.1687 of 1968 which was accepted on 19.12.1969 and the order was set aside on the ground of the jurisdiction of the Commissioner to revise the order of Assistant Collector.
[6]. Thereafter petitioner-Gram Panchayat moved another application under Section 7 of the 1961 Act but the same was withdrawn on 12.03.1974. The petitioner-Gram Panchayat moved yet another application under Section 7 of the 1961 Act on 16.05.1977 and the Collector, Patiala, vide order dated 30.04.1980 accepted the petition and passed an order of ejectment against the predecessors-in-interest of respondents No.1 to 3. The said order was again assailed by the private respondents before the Appellate MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 4 Authority who dismissed the same vide order dated 26.03.1981. [7]. The private respondents assailed that order in CWP No.1648 of 1981 before this Court. This Court vide order dated 29.04.1981 dismissed the petition by observing as follows:-
"Even according to Annexure P-1, the order of the Collector upon which the petitioners placed reliance their possession on the land in dispute is not proved to be for more than 12 years. Dismissed."
[8]. The said order was statedly challenged before the Hon'ble Supreme Court but the final outcome has not been placed on record. The proceedings upto this stage were confined to the action initiated in summary proceedings arising out of Section 7 of the 1961 Act. [9]. Thereafter the predecessors-in-interest of the private respondents filed a petition under Section 11 of the 1961 Act before the respondent No.5 on the ground of they being in possession prior to 26.01.1950. The decision rendered in summary proceedings under Section 7 of the 1961 Act was claimed to have an effect of res-judicata and estoppel against the Gram Panchayat and the same was sought to be created on the ground of withdrawal of application under Section 7 of the 1961 Act by the Gram Panchayat. The petition filed under Section 11 of the Act was allowed by the Collector-cum-DDPO, Patiala, vide order dated 06.10.1982 primarily on the ground of possession of the private respondents for more than 12 years at the commencement of the 1961 Act. MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 5 [10]. The order dated 06.10.1982 passed by the Collector-cum- DDPO, Patiala, was assailed in appeal by the petitioner-Gram Panchayat before the Joint Director, Panchayats exercising the powers of Commissioner. The Appellate Authority dismissed the appeal vide order dated 27.12.1985 by holding that the petitioner- Gram Panchayat was debarred from raising issue again being barred by principle of res-judicata and possession of the private respondents was held to be for more than 12 years before the commencement of the 1961 Act. Both the aforesaid orders have been assailed in the present writ petition.
[11]. The question which arises for consideration in the present case is whether entry of "Shamlat Deh" in the column of ownership, possession of co-sharers in column No.5, nature of land as Banjar Qadim in column No.8 and land not assessed to land revenue in column No.10 according to jamabandi for the year 1950-51, would vest in Gram Panchayat as Shamlat Deh or would be covered by the exclusion clause of Section 2(g) of the 1961 Act? [12]. Word shamlat deh denotes the status of land as such prior to re-organisation of States of Punjab and Haryana and even prior to coming into force of the 1961 Act. There was no concept of Gram Panchayat in the pre-independence era. Punjab Gram Panchayat Act came into being in 1952 only. Prior to that, Panchayats had no legal entity. Therefore, the land which was shown as shamlat deh in the column of ownership had a specific connotation. Shamlat deh MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 6 was the land belonging to entire proprietary body of the village whereas shamlat patti was only confined to particular community, mohalla or inhabitants of the said patti.
[13]. For better appreciation of the controversy, it would be appropriate to reproduce relevant extracts from Section 2(g) of the 1961 Act.
"2. (g) "Shamilat deh" includes (1) Land described in the revenue records as Shamilat deh excluding abadi deh.
xxxxxxxx (3) Land described in the revenue records as shamilat, Tarafs, Pattis Pannas and Tholas and used according to revenue records for the benefit or the village community or a part thereof for common purposes of village.
xxxxxxx (5) Land in any village described as banjar qadim and used for common purposes of the village, according to revenue records; [2] but does not include land which--
xxxxxxx
(viii) was Shamilat deh was assessed to land
revenue and has been in the individual cultivating possession of co-shares not being in excess of their respective shares in such shamilat deh on or before the 26th January, 1950, or2."
[14] Section 4 of the 1961 Act is reproduced as under:- MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 7
"4. Vesting of rights in Panchayats 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 shamlat deh of
any village and which has not vested in a
panchayat under the shamlat 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 the shamlat law, be deemed to have been vested in such non-proprietor."
(2) Any land which is vested in a Panchayat under the 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 MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 8 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, Basikhopohus, Saunjidars, Muqarrirdars;
(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.
(iii) rights of a mortgagee to whom such land
is mortgaged with possession before the
26th January, 1950."
[15]. We shall examine whether the findings recorded by the
Authorities below are based upon any legal or tangible evidence. The main thrust of the private respondents was upon jamabandi for the year 1950-51, to contend that the possession of their predecessors-in-interest was for more than 12 years before the date of commencement of the 1961 Act and the decision in summary proceedings under Section 7 of the 1961, Act would operate as res- judicata and barred the claim of the petitioner-Gram Panchayat. With all fairness to the parties to the litigation, we propose to deal with their all the possible arguments so as to satisfy our judicial conscience as well. In the present convoluted litigation, besides adhering to legal niceties of the issues we also intend to explain and interpret the necessary 'inclusion' and 'exclusion' clauses of Section MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 9 2(g) and Section 4 of the 1961 Act in a chronological order. [16]. The dispute pertains to the fact whether the land in question vests in the Panchayat as shamlat deh under relevant clauses of Section 2(g) or is excluded therefrom by virtue of exclusion clauses?
According to Section 2(g)(1) of the 1961 Act, if the entry in column of ownership is recorded as shamlat deh followed by any other terminology or nomenclature, such land vests in Gram Panchayat as shamlat deh.
[17]. Section 2(g)(3) postulates that the land described in the revenue land as Shamlat, Taraf, Patti, Panna and Thola would vest in Panchayat only if the same is used for common purpose of village community.
[18]. Section 2(g)(5) postulates that the land described as banjar qadim and is used for 'common purposes' of the village according to revenue records would vest in Panchayat as shamlat deh. [19]. The exclusion clause 2(g)(iii) has to be read in conjunction with the aforesaid provision that non-use of such land for 'common purpose' would entail in bringing out the land from the ambit of vesting in Panchayat as shamlat deh.
[20]. The exclusion clause Section 2(g)(viii) postulates that the land being shamlat was in individual cultivating possession of co-sharers, not being in excess of their share in shamlat and the MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 10 land was assessed to land revenue on or before 26.01.1950. [21]. Section 4(3)(ii) prescribes that a person in cultivating possession of shamlat deh of the village and his cultivating possession should be for a period of 12 years immediately preceding the commencement of the 1961 Act and he should be cultivating such land without payment of rent except land revenue or cess. [22]. Now the present controversy has to be tested on the aforesaid broader aspects of the case. Firstly, the contention of learned counsel for the respondents that the outcome of summary proceedings under Section 7 of the 1961 Act bars the proceedings under Section 11 of the 1961 Act, deserves outright rejection. The orders passed under Section 7 of the 1961 Act are summary in nature and the findings recorded thereof does not operate as res- judicata in the proceedings initiated for deciding a title suit. [23]. Only Collector is obligated to decide the title suit. A person holding possession of the land without any right, title or interest cannot translate the same into ownership, nor can stop the true owner i.e. Gram Panchayat from asserting its title. We are squarely fortified in our view on the strength of 1997(1) PLJ 52 (Inder Singh vs. Financial Commissioner, Punjab and others), 1979 PLJ Page I Tara Chand and another vs. Gram Panchayat and others), CWP No.653 of 2011 decided on 03.02.2012 (Balbir Singh versus State of Punjab and others), 2013 Volume 2 LAR Municipal Council, Zirakpur vs. Mohinder Singh and another and 2012(3) MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 11 LAR 614 Jang Bahadur vs. Director Rural Development and Panchayat. The first argument of the respondents is thus answered in negative.
[24]. Land in question by its nomenclature as depicted in the jamabandi for the year 1950-51 shows the following characteristics:-
(a) Land was recorded as shamlat deh in the column of ownership;
(b) Land was shown in possession of the owners/ co-sharers;
(c) Land was shown as banjar qadim in column 8 of
the jamabandi; and
(d) Land was shown as exempted from land
revenue/bachh.
[25]. The entries of shamlat deh prior to consolidation
irrespective of any nomenclature would definitely vest it in Gram Panchayat under Section 2(g)(1) and Section 4 of the Act.
Therefore, word shamlat deh simpliciter followed by any other entry of Hasab Rasad/Hasab Hissa etc. would vest with the Gram Panchayat with the enactment of the 1961 Act.
[26]. In Telu Ram and others v. Gram Sabha Manakpur and others, 1976 PLJ 628 the Division Bench of this Court held that all the clauses of Section 2(g)(1) to (5) of the 1961 Act are independent of each other. Recourse to any of the clauses can be made to the MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 12 exclusion of other. If the case falls under any of the clauses then it would suffice to bring the case within the ambit of said clause to hold the land to be shamlat deh. Similar view was expressed in Shiv Charan Singh and others v. Gram Panchayat Narike and another, 1977 PLJ 453, reiterating that all the sub-clauses of Section 2(g)(1) to (5) of the 1961 Act are independent of each other and do not circumscribe the scope of each other in any manner. It was further held that banjar qadim land would vest in Gram Panchayat if used for common purpose as per revenue record. [27]. Recording of owners/co-sharers to be in possession under column 5 of the jamabandi whether satisfies the tests of Section 2(g)(iii) and 2(g)(viii)?
Word makbuja malkan/co-sharers denotes the possession of the proprietary body in common with no particular co-sharer being in possession of any part of the land, much less in cultivating possession. In this regard reference can be made to 2012 Volume 4 RCR (Civil) 422 Gram Panchayat, Balbera, vill. Balbera vs. Director, Village Development and Panchayat and another. [28]. Section 2(g)(iii) prescribes the following:-
(a) Land was partitioned before 26.01.1950; and
(b) Was brought under cultivation by individual land-
holders.
Whereas the requirement of 2(g)(viii) is as under:- MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 13
(a) Individual cultivating possession of the co-sharers;
(b) Not being in excess of their respective shares;
(c) Not being assessed to land revenue; and
(d) On or before 26.01.1950.......
With the entry of owners/co-sharers in cultivating possession, the requirement of individual cultivating possession is not satisfied. There is mark distinction between individual cultivating possession and proprietary possession of the owners in undivided share. There is no evidence of partition of the land and individual cultivating possession of the land on or before 26.01.1950.
Therefore conditions of 2(g)(iii) of the 1961 Act cannot come to the aid of the respondents.
[29]. The expression banjar qadim in the jamabandi for the year 1950-51 assumes significance in view of definition of the phrases like Banjar Qadim, Banajr Jadid and Gair Mumkin. The person could not be in cultivating possession of the land which was recorded as banjar qadim in the year 1950-51. If the land has not been harvested for four successive crops and has not been sown, then such land is classified as Banjar Jadid or new fallow. If it continues to be uncultivated and the said entries are maintained for the next four harvests then such land comes under the category of banjar qadim or old fallow. The aforesaid terminology shows that a banjar qadim land is a land which remained uncultivated for 8 preceding harvests. Banjar qadim land shown in column No.8 of the Jamabandi for the year 1950-51 negates the plea of self-cultivating possession of the MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 14 respondents as on 26.01.1950.
[30]. The ingredients of Section 2(g)(viii) are also required to be answered on the basis of aforesaid phenomenon of banjar qadim. Individual cultivating possession of even co-sharers cannot be presumed with the entry of banjar qadim in column No.8 of the jamabandi. In the absence of any evidence of partition, no finding can be given whether co-sharers are in possession according to their shares or not. The aforesaid jamabandi further reveals that the land is exempted from land revenue/bachh which further negates the applicability of Section 2(g)(viii) as the land was not assessed to land revenue. On the aforesaid aspect reliance can be placed on 2012 Volume 3 RCR (Civil) 289 titled as Gurdev Singh (deceased) through LRs vs. Additional Director, Panchayat, Punjab and another.
[31]. Section 4(3)(ii) of the 1961 Act has three conditions to be complied with; (a) the person must be cultivating the land which is part of the shamlat deh of the village; (b) he should be cultivating such land for a period of 12 years immediately preceding the commencement of the 1961 Act; and (c) he should be cultivating such land without payment of rent or payment of charges in excess of land revenue and cess. In view of nature of land being banjar qadim the cultivation of the respondents over the land in question cannot be presumed for a period of 12 years immediately preceding the commencement of the 1961 Act.
MOHMED ATIK 2015.02.18 12:45 I attest to the accuracy and authenticity of this document CWP No.2141 of 1986 & other connected cases 15 [32]. Since all the clauses of Section 2(g) of 1961 Act have individual characteristics and would cover the case independent of each other, therefore, in the event of failure of the private respondents to bring the case under the ambit of any exclusion clause, the case would fall back to Section 2(g)(1) and the entry by its nature of shamlat deh would bring the land to be vested in Panchayat as shamlat deh. In CWP No.2264 of 1986 titled as Gram Panchayat, village Mulepur vs. Sucha Singh and others, this Court has also interpreted similar entries in the revenue record and ultimately rejected the claim of private respondents. [33]. In view of what has been stated hereinabove we allow these writ petitions; set aside the impugned orders dated 06.10.1982 and 27.12.1985 (Annexures P-4 & P-5) respectively, and dismiss the petition(s) under Section 11 of the 1961 Act filed by the private respondents by holding that the land in question is shamlat deh under Section 2(g) of the 1961 Act and vests in petitioner(s)-Gram Panchayat free from all encumbrances.
(SURYA KANT) (RAJ MOHAN SINGH)
JUDGE JUDGE
February 16, 2015
Atik
MOHMED ATIK
2015.02.18 12:45
I attest to the accuracy and
authenticity of this document