Punjab-Haryana High Court
Mahindro Devi vs State Of Haryana And Others on 24 May, 2013
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No.25573 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No.25573 of 2012
Date of Decision: 24th May, 2013
Mahindro Devi Petitioner
Versus
State of Haryana and others Respondents
And
Civil Writ Petition No.4354 of 2013
Amar Chand and others ..Petitioners
Versus
State of Haryana and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. Ranjit Saini, Advocate, for the petitioner
Mr. K.S.Boparai, Advocate
as amicus curiae.
Mr. D.Khanna, Additional Advocate General, Haryana
for respondent nos. 1 to 4.
Mr. R.A.Yadav, Advocate for respondent no.5.
Mr. V.K.Jain, Senior Advocate
with Mr. J.L.Malhotra, Advocate
for respondent nos. 6 to 9.
RAJIVE BHALLA, J.
By way of this order, we shall dispose of Civil Writ Petition Civil Writ Petition No.25573 of 2012 2 Nos.25573 of 2012 and 4354 of 2013 as they involve adjudication of similar questions of law and fact.
The petitioner prays for issuance of a writ in the nature of prohibition/mandamus directing the respondents to protect the land measuring 1621 Kanals 17 Marlas, owned and possessed by the Gram Panchayat from so called proprietors of the village, who, in their attempt to appropriate and alienate Shamilat Deh, have got incorrect entries incorporated in the records of rights, by misusing a Full Bench judgment in Jai Singh and others versus State of Haryana, 2003(2) RCR (Civil)578.
Civil Writ Petition No.25573 of 2012 was filed by Mahindro Devi wife of Rattan, but as she filed an application to withdraw the writ petition, Mr. Kulwant Singh Boparai, Advocate, was requested to assist the court, as amicus curiae. Civil Writ Petition No. 4354 of 2013, similar on facts and praying for the same relief, was ordered to be heard along with Civil Writ Petition No.25573 of 2012.
After taking cognizance of the facts, the following order was passed on 20.12.2012:
" Present: Mr. Ranjit Saini, Advocate, for the petitioner.
Counsel for the petitioner submits that the land, in dispute, might have been recorded as shamilat deh hasab rasad zare khewat prior to 1953, but with enactment of the Punjab Village Common lands (Regulation) Act, 1953, shamilat land, whatever be its description, came to vest in the Gram Panchayat and the Civil Writ Petition No.25573 of 2012 3 mutation was, therefore, recorded, reflecting the ownership of the Gram Panchayat. During consolidation, this entry was maintained and the first jamabandi (missal Haqiat), prepared after consolidation in the year 1961-62, records the Gram Panchayat, as owner. A group of proprietors, taking advantage of act No.9 of 1992, which declared land described 'Jumla Mushtarka Malkan' as 'Shamilat Deh' and the judgment passed in Jai Singh and others v. State of Haryana, 2003(2) RCR(Civil) 578, filed a writ petition which was disposed of in terms of the judgment in Jai Singh's case (supra). Counsel for the petitioner further submits that judgment in Jai Singh's case (supra) does not relate to shamilat deh or Panchayat Deh, but to Jumla Mushtarka Malkan. The revenue officers have, however, sanctioned a mutation in favour of the Gram Panchayat, as a contempt petition has been filed by proprietors.
After due consideration of arguments addressed and, prima facie, perusal of the record, we are of the considered opinion that the land is shamilat deh and came to vest in the Gram Panchayat, under the 1953 Act and thereafter, under the Punjab village Common Lands (Regulation) Act, 1961. The land, in our considered opinion, is not jumla mushtarka malkan and, therefore, did not vest in Gram Panchayat, by virtue of Section 2(g) (6) introduced by Act No.9 of 1992. The judgment in 'Jai Civil Writ Petition No.25573 of 2012 4 Singh's case (supra) does not apply to the land, in dispute. As a normal course, the petitioner would have been relegated to filing of an appeal before the Collector, but as the mutation appears to have been sanctioned pursuant to an order passed in the writ petition and a subsequent contempt petition, we issue notice of motion for 21.2.2013 and direct that operation of mutation (Annexure P10) shall remain stayed till further orders."
Mr. Kulwant Singh Boparai, amicus curiae and Mr. Ranjit Singh, Advocates, submit that land measuring 1621 Kanals 17 Marlas, is "Shamilat Deh" and vests in Gram Panchayat, Khokhra @ Thappal, District Panchkula. The jamabandi for the year 1959-60 prepared, immediately before consolidation records that the land is "Shamilat Deh, Hasb Rasad Zare Khewat". During consolidation, the missal Haqiat, i.e., the first jamabandi, prepared after consolidation, records that the land is owned by the Gram Panchayat and is in possession of "Makbuja Malkan" (in possession of owners). The jamabandi for the year, 1969-70, once again records that the land is "Shamilat Deh Hasab Rasad Zare Khewat" but in possession of certain proprietors as "Gair Marausi. The quality of land, in dispute, is "Gair Mumkin Pahad" (hills), "Banjar Qadim"(uncultivated) or "Gair Mumkin Nadi". ( a river or a stream). The entries in the jamabandis and the nature of the land clearly prove that the land vests in the Gram Panchayat under Section 2(g) of the 1961 Act.
A group of proprietors, taking advantage of enactment of Section 2(g)(6) of the 1961 Act, filed Civil Writ Petition No.7040 of Civil Writ Petition No.25573 of 2012 5 2001, praying that Section 2(g)(6) of the 1961 Act, introduced by the Haryana Act No. 9 of 1992, into the Punjab Village Common Lands, Act, 1961 (hereinafter referred to as "the 1961 Act"), be declared ultra vires. Counsel for the petitioner points point out that the amendment, pertains to land created during consolidation, after applying a pro rata cut on the holdings of proprietors, described as "Jumla Mushtarka Malkan" and not to "Shamilat Deh", but the proprietors got their writ petition tagged with a bunch of writ petitions, challenging the vires of Section 2(g)(6) of the 1961 Act. The writ petition was disposed of in terms of the judgment in Jai Singh's case (supra), though the judgment in Jai Singh's case applies to "Jumla Mushtarka Malkan" and the land, in dispute, is "Shamilat Deh".
The proprietors, thereafter, filed COCP No.2630 of 2011, titled Mela Ram and others Versus Mrs. Ashima Brar and another. In reply filed to the contempt petition, it was pleaded that the land is "Shamilat Deh Hasab Rasad Zare Khewat" and not "Jumla Mushtarka Malkan", but the revenue officers changed the mutation from "Gram Panchayat" to "Shamilat Deh Hasab Rasad Zare Khewat". It is further argued that under the garb of this mutation and orders passed in Jai Singh's case (supra), proprietors of the village, in connivance with the Sarpanch and official respondents, have got khasra girdawaris recorded so as to stake a claim of proprietary rights, by alleging that the land belongs to proprietors. It is argued that proprietors have no right, title or interest in the suit land as it is "Shamilat Deh" and vests in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1953 Civil Writ Petition No.25573 of 2012 6 (hereinafter referred to as the "1953 Act") and as it is not excluded, from "Shamilat Deh" by any provision of the 1961 Act, the attempt by proprietors and revenue officers, who appear to be ever ready to oblige proprietors, to misuse the judgment in Jai Singh's case (supra), should be checked and revenue officers should be restrained from making any change in revenue entries to adversely affect the rights of the Gram Panchayat.
Counsel for the Gram Panchayat surprisingly disowns the ownership of the Gram Panchayat and argues that as Civil Writ Petition No.5877 of 1992 was disposed of on 13.3.2003 in terms of orders passed in Jai Singh's case (supra), the land in dispute, belongs to proprietors. It is further contended that jamabandi for the year 1943-44, records the land as "Shamilat Deh Hasab Rasad Zare Khewat" and in possession of "Mushtarka Malkan", thereby clearly proving that the land, in dispute belongs to proprietors. The revenue entries recorded in favour of the Gram Panchayat are illegal as the land does not vest in the Gram Panchayat. It is further submitted that a copy of the consolidation scheme (Annexure P-5/3) supports this contention and it is for this reason that jamabandi prepared after consolidation records the words "Shamilat Deh Hasab Rasad Zare Khewat".
The private respondents have not filed any reply, but Mr. V.K.Jain, Senior Advocate, with Mr. J.L.Malhotra, Advocate, contends that as the petitioners are aggrieved by a mutation, they should file an appeal and if they seek to raise a plea that the land, in dispute, vests in the Gram Panchayat, they should file a suit under Section Civil Writ Petition No.25573 of 2012 7 13-A of the 1961 Act. It is further argued that as a mutation does not confer title and any adjudication of the pleas raised in the petition, would involve adjudicating disputed questions of fact, it would be appropriate that parties are relegated to the filing of a suit under Section 13-A of the 1961 Act.
We have heard counsel for the parties, perused the paper book, the jamabandis and documents prepared during consolidation.
The common land of a village broadly speaking, is of two types, i.e., "Shamilat Deh" and "Jumla Mushtarka Malkan". The former is the common land of a village that was earmarked by proprietors for their common use, and was owned and possessed by proprietors, before enactment of the 1953 and the 1961 Acts. The Shamilat Deh of a village came to vest in a Gram Panchayat under the 1953 Act and thereafter under the 1961 Act. The words "Shamilat Deh" are generally followed by expressions like "Hasab Rasad Zare Khewat" etc. denoting the manner of calculating share holdings of proprietors in "Shamilat Deh" before the land came to vest in a Gram Panchayat, are, therefore, no longer relevant. A reference in this regard may be made to a judgment in Bhag Singh versus State of Punjab and others (Civil Writ Petition No.8577 of 2002) decided on 6.7.2012. The land, in dispute, is "Shamilat Deh Hasab Rasad Zare Khewat" and was in existence as "common land" before consolidation and at the time of enactment of the 1953 and 1961 Acts.
Jumla Mushtarka Malkan is land created during consolidation after applying a pro rata cut on the holdings of Civil Writ Petition No.25573 of 2012 8 proprietors. Section 2(g)(6) was introduced by the State of Haryana to declare that land reserved during consolidation as "Jumla Mushtarka Malkan" shall be included in "Shamilat Deh". A large number of writ petitions were filed to challenge the vires of Section 2
(g)(6) of the 1961 Act. A set of proprietors, of this village, taking advantage of the pendency of these writ petitions, filed Civil Writ Petition No. 5877 of 1992 and though the land is "Shamilat Deh" and not "Jumla Mushtarka Malkan" got their petition tagged with these writ petitions. The writ petition was disposed of along with a bunch of petitions in terms of judgment in Jai Singh's case (supra). The proprietors went on to file a Contempt Petition and though it was brought to the notice of the court that the land is "Shamilat Deh" and not "Jumla Mushtarka Malkan", but revenue officers, fearful of contempt proceedings, deleted the name of the Gram Panchayat, and restored the entry of "Shamilat Deh Hasab Rasad Zare Khewat".
It would be appropriate to point out that the mutation from Gram Panchayat to "Shamilat Deh Hasab Rasad Zare Khewat", would make no difference to the ownership of the Gram Panchayat as land described as "Shamilat Deh" of a village, came to vest in a Gram Panchayat under the 1953 Act and after its repeal under the 1961 Act. The expression "Hasab Rasad Zare Khewat", denotes nothing more than the manner of calculating the share holdings of proprietors, before the land came to vest in the Gram Panchayat. It would be appropriate to point out that most of the land, is "Gair Mumkin Pahad" (hillocks) and "Nadi"( rivers, streams).
Counsel for the Gram Panchayat, instead of protecting Civil Writ Petition No.25573 of 2012 9 the interest of the Gram Panchayat has surprisingly parroted the stand taken by proprietors. A perusal of the reply indicates collusion between the Gram Panchayat and proprietors. The conduct of the Gram Panchayat is deprecated. The mere fact that the entry in the revenue record is "Shamilat Deh Hasab Rasad Zare Khewat", would not divest the Gram Panchayat of its rights conferred under the 1953 and the 1961 Acts. It would, therefore, be necessary, while disposing of the writ petition, to record our prima facie opinion that the land in dispute vests in the Gram Panchayat and pass an order to protect Gram Panchayat property.
We are conscious of the fact that we are dealing with a mutation and not with an order declaring the rights of the Gram Panchayat or the proprietors and, therefore, record that our opinion as to ownership of the land, in dispute, shall not prevent any person/proprietor or the Gram Panchayat from filing a suit under section 13-A of the 1961 Act, to establish that the land, in dispute, vests or does not vest in the Gram Panchayat.
The writ petitions are, accordingly, disposed of by directing the Deputy Commissioner, the Tehsildar, and all revenue and panchayat officers concerned and the Gram Panchayat Khokhra @ Thappal, that they are duty bound to protect public property. The Deputy Commissioner shall personally ensure that the land, in dispute, is not encroached, or alienated in any manner, by any person whosoever. The Deputy Commissioner, Panchkula, shall also ensure that no revenue entry is altered, except for a legal cause.
We express our appreciation of the assistance provided Civil Writ Petition No.25573 of 2012 10 by Mr. Kulwant Singh Boparai, Advocate, as amicus curiae.
( RAJIVE BHALLA ) JUDGE ( REKHA MITTAL ) th 24 May, 2013 JUDGE VK