Punjab-Haryana High Court
Baru And Others vs Gram Panchayat on 20 December, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No. 13573 of 1992 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 13573 of 1992
Date of Decision 20th December, 2012
Baru and others ..Petitioners
Versus
Gram Panchayat, Padhana and another ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. Arun Jain, Senior Advocate
with Mr. Vikram Singh, Advocate
for the petitioners.
Mr. C.B.Goel, Advocate, for respondent no.1.
Mr. Deepak Girotra, AAG, Haryana
for respondent No.2.
RAJIVE BHALLA, J.
The petitioners pray for issuance of a writ of certiorari quashing orders dated 12.8.1988 (Annexure P-1) 14.2.1989 (Annexure P-3) and 28.8.1992 (Annexure P-5), passed by the Assistant Collector 1st Grade, Karnal, the Collector, Karnal and the Commissioner, Rohtak Division, Rohtak, respectively.
A mutation bearing no. 734 was sanctioned in favour of the Gram Panchayat, Padhana, on 8.6.1954, recording the ownership of the Gram Panchayat on the basis of the Punjab Village Common Lands (Regulation) Act, 1953. (hereinafter referred to as the "1953 Act"). The entries were, accordingly, changed from Civil Writ Petition No. 13573 of 1992 2 "Shamilat Deh Hasab Rasad Malkiati", to "Gram Panchayat". The 1953 Act was repealed by the Punjab Village Common Lands (Regulation) Act, 1961.
The proprietors filed a suit, before a Civil Court, claiming that the land, in dispute, does not vest in the Gram Panchayat. The suit was decreed on 26.4.1971, but this order was set aside by the Appellate Court on 25.11.1981 on the ground that the Sarpanch did not have the authority to concede the claim of proprietors.
The petitioners, thereafter, filed a fresh suit on 2.12.1985, under section 13-A of the 1961 Act, before the Assistant Collector 1st Grade, Karnal, claiming ownership on the ground that the land was in cultivating possession of their predecessors before commencement of the 1953 Act. The Gram Panchayat, filed a reply, denying averments in the petition. The petitioners filed a replication. After considering the pleadings, the Assistant Collector 1st Grade, framed the following issues:
"1 Whether the plaintiffs are in possession of the suit land as owner in the light of provisions of Village Common Land Act, since 26.1.50, if so, to what effect?OPP
2. Whether the plaintiffs have no locus standi to file the present suit? OPD
3. Whether the plaintiffs have no right, title or interest?OPD
4. Whether the suit is not maintainable in the present form?OPD
5. Whether the plaint does not maintainable in the Civil Writ Petition No. 13573 of 1992 3 present form?OPD
6. Whether the suit is time barred?OPD
7. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?OPD
8. Whether the suit is bad for misjoinder and non- joinder of necessary parties?OPD
9. Relief."
The petitioners adduced in evidence various jamabandis in support of their plea that their predecessors were in cultivating possession of the land in dispute for a period of more than 12 years prior to commencement of the 1953 Act. The Gram Panchayat produced evidence in support of its plea that the land belongs to the Gram Panchayat.
The Assistant Collector 1st Grade, vide order dated 12.8.1988, decided issue no.1 in favour of the petitioners by holding that as they were in possession of the land prior to commencement of the 1953 Act, the land is not "Shamilat Deh" and does not vest in the Gram Panchayat. The other issues were decided against the Gram Panchayat. Aggrieved by this order, the Gram Panchayat filed an appeal before the Collector, Karnal, which was dismissed on 14.2.1989. The Gram Panchayat filed a revision before the Commissioner. The revision was allowed, orders passed by the Assistant Collector and the Collector, were set aside but the Commissioner granted liberty to the petitioners to prove their individual rights under the 1961 Act.
The petitioners have filed Civil Misc. Application Civil Writ Petition No. 13573 of 1992 4 No.11592 of 2012, to place on record translated and photostat copies of jamabandis for the year 1926-27 (Annexure P-6) and 1942-43 (Annexure P-7). The application was allowed on 10.9.2012, and these documents were taken on record, subject to any objection being raised by the respondents.
Counsel for the petitioners submits that mutation no.734 sanctioned in favour of the Gram Panchayat, is illegal and void, as the land, in dispute, was in possession of proprietors and, even otherwise, a mere mutation does not confer title. It is further submitted by reference to jamabandis for the years 1926-27, 1934- 35, 1946-47 and 1950-51 that as the land was in individual cultivating possession of co-sharers, not being in excess of their shares on or before 26.1.1950, the land is excluded from "Shamilat Deh" under sub-section (viii) of Section 2(g) of the 1961 Act. It is further submitted that sub-section (3)(ii) of Section 4 of the 1961 Act, provides that land in possession of persons in cultivating possession of "Shamilat Deh", 12 years before commencement of the 1953 Act, shall be excluded from "Shamilat Deh". The petitioners were in cultivating possession 12 years, before the commencement of the 1953 Act, without payment of rent or any charges not exceeding land revenue and cesses payable thereon as is proved by jamabandi for the year 1926-27, etc. The petitioners specifically refer to part of jamabandi for the year 1926-27, appearing at page 96 onwards, of the paper-book, to contend that the land is recorded in possession of a large number of proprietors and, though, these jamabandis were led into evidence before the Assistant Collector,they have not been Civil Writ Petition No. 13573 of 1992 5 considered by the Commissioner. It is also argued that the petitioners have produced sufficient evidence to prove that the land, in dispute, is excluded from "Shamilat Deh" by virtue of Section 2(g)
(viii) and Section 4(3)(ii) of the 1961 Act. It is further submitted that jamabandis for the years 1934-35, 1946-47 and 1950-51 have not been considered. It is also argued that as the suit was filed with respect to the entire "Shamilat Deh" and in case any portion of the land was in cultivating possession of proprietors, it was the duty of the Commissioner to determine as to which portion of the land was in cultivating possession and to exclude this land from "Shamilat Deh".
Counsel for the respondent-Gram Panchayat, on the other hand, submits that the order passed, in revision, does not suffer from any error of jurisdiction or of law. The revisional authority has rightly held that orders passed by the Assistant Collector and the Collector, are illegal, as petitioners have not been able to prove their cultivating possession prior to 26.1.1950, as required by Section 2(g)
(viii) of the 1961 Act. It is further submitted that the petitioners were not in cultivating possession, prior to 26.1.1950, as the land was "Banjar Qadim". It is further submitted that as the petitioners did not plead or prove their possession, prior to the commencement of the 1953 Act, as envisaged under section 4(3)(ii) of the 1961 Act, the impugned order should be affirmed.
We have heard counsel for the parties, perused the impugned order, orders passed by the Assistant Collector, the Collector and the relevant revenue record.
Civil Writ Petition No. 13573 of 1992 6
The dispute, in the present case, is whether the land, in dispute, vests in proprietors or the Gram Panchayat. The land, in dispute, was, admittedly, recorded as "Shamilat Deh Hasab Rasad Malkiati". The common land of a village was the sole and exclusive ownership of proprietors, but after enactment of the 1953 Act, came to vest, by virtue of a declaration, in Section 3 of the said enactment, in the Gram Panchayat. Mutation No. 734 dated 8.6.1954 was recorded to reflect this statutory declaration. The argument that mutation No.734 was recorded without any legal foundation, is, therefore, factually and legally incorrect.
The 1953 Act was repealed and was replaced by the 1961, to provide a detailed definition of "Shamilat Deh". Section 2(g) of the 1961 Act, sets out in detail the circumstances in which land described as "Shamilat Deh", shall be included or excluded from "Shamilat Deh". Section 3 of the 1961 Act, provides that land, that has vested in a Gram Panchayat as Shamilat Deh", under the 1953 Act, shall continue to so vest, except if it is excluded from "Shamilat Deh" by Section 2(g) of the 1961 Act.
Section 4(3)(ii) of the 1961 Act (as applicable to the State of Haryana), bears the title " Vesting of rights in Panchayat and non- proprietors" and provides for vesting in a Gram Panchayat and protects the rights of non-proprietors in cultivating possession of "Shamilat Deh" on the coming into force of the 1953 Act, provided they were in cultivating possession for more than 12 years before enactment of the 1953 Act, without payment of rent or by payment of charges not exceeding the land revenue and cesses payable Civil Writ Petition No. 13573 of 1992 7 thereon. The Assistant Collector, held that as jamabandis for the years 1926-27, 1934-35 record the possession of the petitioners' predecessors, they are protected by section 4(3)(ii) of the 1961 Act. The Collector has affirmed this order. The revisional authority reversed these orders by holding that as the petitioners are claiming rights as proprietors, they are not entitled to the benefit of Section 4 (3)(ii) of the 1961 Act. The finding recorded by the revisional authority cannot be faulted. Section 4 of the 1961 Act bears the title "Vesting of rights in Panchayat and non-proprietors" and, therefore, saves the possession of non-proprietors. The revisional authority, however, failed to refer to or consider jamabandis for the years 1926-27, 1934- 35 and 1942-43 in the context of the petitioners' plea based upon section 2(g)(viii) of the 1961 Act, which reads as follows:
2(g) "Shamilat deh" includes-
(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
(5) XX XX XX
but does not include land which--
(i) XX XX XX
(ii) XX XX XX
(ii-a) XX XX XX
(iv) XX XX XX
(v) XX XX XX
Civil Writ Petition No. 13573 of 1992 8
(vi) XX XX XX
(vii) XX XX XX
"2(g)(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 relevant jamabandis, in our considered opinion, appear to, prima facie, record the cultivating possession of a large number of persons but whether these persons are proprietors or not and whether they are members of the proprietary body, has not been considered or decided by the revisional authority. It would be appropriate to refer to certain entries in the jamabandis for the years 1926-27 and 1942-43 so as to place our prima facie conclusion in its correct perspective.
1 2 3 4 5 6 7 8 9 10 11 12 Khewat Num- Name/ Name of owner Name of occupant Name of Rect. or Area/categ- Details of Share or Details Other ber along with with particulars other sources Muraba ory of land Rate and mea- of infor-
or Side
particulars for irrigation Number quantity surem- goods mat-
jamaba- Khat- direction
with Cess ent of and ion.
ndi oni or patti /Killa No.
paid by Hakikat sabai
name of
occupant and along
Number-
mode of with
dar with
baachh share
deposits
Shamilat Tungal son of 520 Min 11-8 Maal
Deh Fata & Sadhu Barani 1/11/-
son of Kundan Sinchai-/
ba Hissedar 4/6
Baraber -----------
Hissedaran
271 722 --1/15/6
Nanku son of Mahram 1524 0-2 Chahi Batai
Mukhtyar Caste Wala Bashra
Rajput Sakan Khata
723 Deh No.Two
Civil Writ Petition No. 13573 of 1992 9
1 2 3 4 5 6 7 8 9 10 11 12
Ramchander Asa 1894 0-8 Maal-/
Ram Pisraj Birja Barani 1/3
& Nagar son of Sinchai
Salag ba Hissa -/1-3
Braber
Hissedaran -----------
-
725 -/1/16
Nagda etc. 892 0-9 Maal
Hissedaran Barani 0- 1/6/9
927
Chanchal & 11 Sinchai
Kitta 2
Ram Singh Baa ------------ /3/9
equal share co-
sharer 0-9 -----------
Barani 0- -
11 Banjar 1/10/6
kadim
709 1-0
Musmmat Gendi 1953 0-15 Maal-/
widow Sarup Barani 2/-
Hissedar ba Kast Sinchai
Kabaj -/-3
-----------
--
710 -/2/3
Tungal Hissedar Hempala 1401 1-0 Maal-/
Banjar 3/6
1522
Kadim Bai-/-/6-
2487
0-6 -----------
Kitta 3 Chahi 0- --
18 Banjar -/4/-
Kadim
Kadim
0-6
Chahi 1-
18 Banjar
711 Kadim
271Ma Shamlat Khud Kast Kabij 7-11 1/00 Ki
jkoor Deh Latter Pisran Barani bigha
Neval Ba equal 10/00
share Marfat Saaltama
Suba son of m
Inder caste Maal-/
Rajput Sakan 2/-
Deh Gair Moursi Sinchai-/
713 2402 -3-/2/3
Civil Writ Petition No. 13573 of 1992 10
1 2 3 4 5 6 7 8 9 10 11 12
714 Sadhu Bishan 1881 0-15 Batai
Singh Pisraan Baashra
Barani
Baja bo Hissa Khata
Baraber co- No.2
sharers Marfat Two
Latur son of Maal-/
Rayedal caste 2/-
Rajput Sakan Sinchai-/
Deh Gairmorusi -/3
-/2/3
Khud kast Lijja Bali 287 7-0Barani Maal
co- sharer 1/1/9
Sinchai-/
715 3- 1 /4/9
Kalu son of 285 0-13 Maal-/
Deewan Caste Barani 2/-
Rajput Sakan Sinchai-/
Deh Gair -/3-/2/3
Morausi Mathat
Chamela co-
716 sharer
Kallu son of 880 1-3 Maal-/
Deewan co- Barani 5/-
sharer Sinchai-/
717 -9/5/9
Sadhu son of 52 01/16 Batani
Bija Chamar Balidar Chahi Bashra
Sakan Deh Gair Khata
Morausi No.Two
718
Similarly, jamabandi for the year 1942-43 records certain entries in the columns mentioned below:
1 2 3 4 5 6 7 8 9 10 11 12 Number Numbe Name Name Name of Name Rect. Or Area Details of Share of Details Other Khewat r side/di of Occupant of Muraba Categor Rate and Measure of goods inform or Khatoni rectio owner with other Number y of quantity ment of and ation Jamaba n or along particulars source /Killa land with Cess, Hakikat Sabai ndi Patti with s for No. paid by and mode along and particu irrigat occupant of with Name lars ion/K Baachh share of uan Numb etc. erdar with deposi ts Civil Writ Petition No. 13573 of 1992 11 1 2 3 4 5 6 7 8 9 10 11 12 Self 1663 0-14 X cultivation Min Barani of Ram Sin gh & Musmaat Nagli in equal sharer, co 627 sharers Self Loti 1476 6-5 Gair Maal-/ cultivation Wala Milak Barani Majruya 3/- Sibai of Bhola & 1496 5-5 8-12 -/-16 Raju & Barani Banjar "
Madu in 0-19 Kadim Mija -/ equal 1569 Chahi 3/6 6-17 share, co- " 1-15 Gair ______ sharers Gair 1658 Mumkin X mumkin Kalar Kalar 1-15 --- ----- 1707 Min 0-5 Maal Gora Chahi 1/-/3 1969 0-14 Sivai-/ Kalar Banjar 2/9 2149 Kadim ---------- intso 6-3 1/3/- Banjar Kitte 7 Kadim Min 31-6 Salam 1 Majruya 6 22-14 1-4 Chahi Barani 628 21-10 279 626 Shamil Self 2007 1-3 Maal-/ at Deh Cultivation Indron Barani 3/- Sivai Majkoor Majkur of Harbans -/-/6 co-sharer Mijas -/ 3/6 ------- Self 1663 0-14 X cultivation Min Barani of Ram Singh & Musmaat Nagli in equal share, co- 627 sharers Civil Writ Petition No. 13573 of 1992 12 1 2 3 4 5 6 7 8 9 10 11 12 Self Loti 1476 6-5- Maal-/ Cultivation Wala Milak Barani 3/- of Bhola & 1496 5-5 Sibai-/-/ Raju & Barani 6 " Madu in 0-19 Mija-/ equal 1569 Chahi 3/6 share, co- " 1-15 sharers Gair -------- 1658 mumkin X Kalar Kalar 0- 1707 5 Chahi Maal Min 0-4 1/-/3 Gora Banjar 1969 Sivai-/ Kadim 2/9 Kalar 6-3 2149 Banjar 1/3/- intoso Kadim Kitte 7 Min 628 1
A perusal of these entries in jamabandis for the years 1926-27 and 1942-43, prima facie suggest that certain persons were in cultivating possession of the "Shamilat Khewat". The revisional authority was, therefore, required to consider the effect of these entries on the rights of the petitioners and the Gram Panchayat. The revisional authority should have made an attempt to examine the jamabandis and determine whether any co-sharer was in cultivating possession prior to 26.1.1950 as postulated by section 2(g)(viii) of the 1961 Act. The revisional authority instead, of deciding this point, granted liberty to individual petitioners to prove their rights under the 1961 Act.
We are conscious of the fact that the matter has been pending for more than two decades, but as the revisional authority has, itself, granted liberty to the petitioners, to seek adjudication of Civil Writ Petition No. 13573 of 1992 13 their separate rights under section 13-A of the 1961 Act, it would be appropriate to direct the revisional authority to consider the jamabandis, referred to above, and decide individual case of proprietors on the basis of section 2(g)(viii) of the 1961 Act instead of each proprietor filing a separate petition, which may lead to passing of different orders by different authorities, relating to the same land and similar rights and an un-ending process of litigation.
In this view of the matter, we allow the writ petition in part and while affirming the order passed by the revisional authority in so far as it has set aside orders passed by the Assistant Collector and the Collector, set aside that part of the order, whereby liberty has been granted to the petitioners, to file individual petitions under section 13-A of the 1961 Act and direct the revisional authority to consider the claim of such of the petitioners who may appear before him to prove that their case is covered by section 2(g)(viii) of the 1961 Act, within six months from the date, parties put in appearance before the revisional authority, on 04.02.2013.
( RAJIVE BHALLA )
JUDGE
20th December, 2012 ( REKHA MITTAL )
VK JUDGE