Punjab-Haryana High Court
Gram Panchayat Of Village Hoshiarpur vs State Of Punjab And Others on 31 October, 2012
Bench: Rajive Bhalla, Rekha Mittal
Civil Writ Petition No.4493 of 2007 1
IN THE HIGH COURT OF PUJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No. 4493 of 2007
Date of Decision: October, 2012
Gram Panchayat of Village Hoshiarpur ..Petitioner
Versus
State of Punjab and others ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present; Mr. Munish Jolly, Advocate for the petitioner.
Mr. NDS Mann, Additional Advocate General,
Punjab for respondent Nos. 1 to 4.
Mr. M.L.Sharma, Advocate for the private respondents.
RAJIVE BHALLA, J.
By this order, we shall dispose of Civil Writ Petitions No. 4493, 4494, 4495, 15167 and 15168 of 2007 as they involve adjudication of similar questions of facts and law. However, for the sake of convenience, facts are being taken from Civil Writ Petition No.4493 of 2007.
The Gram Panchayat impugns order dated 12.4.2006 passed by the Director, Rural Development, Panchayats, Punjab (exercising powers of "Commissioner"), under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the `1961 Act'), whereby order dated 13.9.2004 passed by the Additional Deputy Commissioner (Development)-cum-Collector, has been reversed by holding that the land in dispute does not vest in the Civil Writ Petition No.4493 of 2007 2 Gram Panchayat.
Counsel for the petitioner contends that as the land, in dispute, is, admittedly, `Shamilat Deh', it vests in the Gram Panchayat under section 2(g)(1) of the 1961 Act. It is further argued that as a large part of this tract of land is "Gair Mumkin Choe", (seasonal rivulets), and "Banjar Qadim", the land cannot possibly vest in proprietors, much less, any private individual under any provision of the 1961 Act. It is argued that jamabandis for the years 1931-32, 1939-40, 1955-56, 1965-66, 1969-70, 1974-75, 1979-80, 1982-83, 1992-93 and 1997-98 record the land as "Gair Mumkin Choes" etc., thereby clearly establishing that land, in dispute, is a seasonal rivulet. The Collector, Rupnagar, rightly held that the land, in dispute, does not vest in the Gram Panchayat and rightly ignored orders passed by consolidation authorities, directing re-distribution of this land amongst proprietors. The appellate authority has reversed the impugned order by relying upon order dated 10.6.1997 passed by the Additional Director, Consolidation and by recording that as the land is "Shamilat Deh Hasab Rasad Zare Khewat" in possession of "Khud Kasht Va Makbuja Malkan", it vests in proprietors and as the `Wazib-ul-Arz' records that "Shamilat Deh"
shall be used by residents without charge and fruits of the common land shall be shared amongst land-owners, the land does not vest in the Gram Panchayat. It is also pointed out that the appellate authority has referred to a judgment of the Hon'ble Supreme Court in "Gurjant Singh versus State of Punjab", without referring to its citation and even otherwise, a judgment with the same title relates Civil Writ Petition No.4493 of 2007 3 to 'Jumla Mushtarka Malkan" and not to "Shamilat Deh". It is also submitted that while allowing the appeal, the appellate authority did not decide the application for condonation of delay, much less, record an order that any explanation for delay has been furnished. It is also argued that as the Additional Director, Consolidation, had no jurisdiction to entertain a petition filed on behalf of proprietors, divest the Gram Panchayat of its proprietary rights, or order its partition, the order passed by the Additional Director, Consolidation, is a nullity and was, therefore, rightly ignored by the Collector. The reasoning adopted by the appellate authority, while holding that order passed by the Director Consolidation, is legal and valid; is perverse, arbitrary and contrary to law.
Counsel for the private respondents submits that as the land, in dispute, is "Shamilat Deh Hasab Rasad Zare Khewat" and recorded in possession of the proprietary body as "Mushtarka Malkan", the land is not "Shamilat Deh" and, therefore, does not vest in the Gram Panchayat. The order passed by the Additional Director, Consolidation, under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation), Act, 1948 (hereinafter referred to as the '1948 Act') distributing this land amongst proprietors, is legal and valid and is binding as the Gram Panchayat did not challenge this order in any proceeding. It is further submitted that as the land, in dispute, is not used for any purpose, much less, any common purpose set out in the `1948 Act' or in the 1961 Act, the land does not vest in the Gram Panchayat. It is further submitted that the land was carved out during consolidation after Civil Writ Petition No.4493 of 2007 4 applying a pro rata cut on the holdings of proprietors and, is, therefore, `Bachat Land', that has to be returned to proprietors. Counsel for the respondents relies upon a judgment of the Hon'ble Supreme Court in Bhagat Ram and others versus State of Punjab and others, 1967 Supreme Court 937 to contend that land cannot be reserved for income of the Panchayat as such, a reservation would contravene the provisions of second proviso of Article 31-A(1) of the Constitution. The respondents also place reliance upon the following judgments:- Des Raj and another versus Gram Sabha of village Ladhot and another, 1981 PLJ 300; Chajju Ram versus The Joint Director, Panchayats and Others, 1986, PLJ, 293; Gram Panchayat Duna Majri versus Director Consolidation of Holdings and Others, 1981 PLJ 46; Baj Singh versus State of Punjab and others, 1992 PLJ 186; Kaka Singh versus Commissioner, Hissar Division and others, 1984 PLJ 169; Joginder Singh and others versus The Director, Consolidation of Holdings, 1988 PLJ 536 and Gram Panchayat Village Bhedpura versus The Additional Director Consolidation, 1997 (1) PLJ 535, to contend that the land reserved for common purposes but not utilised as such, has to be returned to proprietors. Counsel for the respondents further contends on the basis of a judgment in Joginder Singh and others versus The Director, Consolidation of Holdings (supra), that the land in cultivating possession of proprietors prior to consolidation, does not vest in the Gram Panchayat as "Shamilat Deh".
We have heard counsel for the parties, perused the impugned order, order passed by the Collector and the Additional Civil Writ Petition No.4493 of 2007 5 Director, Consolidation, revenue documents appended with the petition, reply filed by the respondents and have no hesitation in holding that while allowing the appeal, the Director, Panchayats, has passed an order, that is, both factually and legally incorrect and may, border on the mala fide. The case, in hand, reveals the mala fide manner in which provisions of the Consolidation Act are misused, officers of the Consolidation Department collude with unscrupulous elements and the manner, in which authorities under the 1961 Act, acquiesce in mala fide and collusive attempts to deprive a Gram Panchayat of its property.
The land, in dispute, abuts the city of Chandigarh and is extremely valuable. We have a strong suspicion that certain influential persons may be behind the proprietors as they have put in appearance and filed their reply through a power of attorney holder but we do not propose to delve into this matter any further lest we loose sight of the dispute in hand.
A series of orders, passed by the Director or the Additional Director Consolidation, exercising powers under the 1948 Act, holding that as Shamilat Deh does not vest in the Gram Panchayat it should be partitioned amongst proprietors, have come to our notice. Another series of such orders have been passed where land, reserved during consolidation for common purposes, i.e., `Jumla Mushtarka Malkan', has been returned to proprietors on the specious premise that it is 'Bachat Land" by blatantly ignoring, the lack of jurisdiction, the delay of many decades or should we say without any fear of law or consequence of these illegal acts. A fraud Civil Writ Petition No.4493 of 2007 6 of unimaginable proportion has been played by unscrupulous elements, greedy proprietors, colluding Gram Panchayats and ever obliging officers. The present case is one such case in this long series of illegal orders.
Before proceeding to record the submissions and our opinion thereon, it would be necessary to narrate facts, which are being taken from Civil Writ Petition No.4493 of 2007.
The land, in dispute, is, admittedly, "Shamilat Deh", and recorded in the relevant revenue records as "Shamilat Deh Majkoor". A major portion of the land is described as "Banjar Qadim", "Gair Mumkin Rasta" (path), "Gair Mumkin Choe ( seasonal rivulet), "Gair Mumkin Nadi", Gair Mumkin Rait" (sand) etc.. A few jamabandies describe the land as "Shamilat Deh Hasab Rasad Zare Khewat", in possession of "Makbuja Malkan". The land is, therefore, without a shadow of doubt, "Shamilat Deh" as opposed to land created during consolidation, which is called "Jumla Mushtarka Malkan". At this stage, it would be necessary to clarify the difference between "Shamialt Deh" and "Jumla Mushtarka Malkan" as the private respondents have, at various stages of the litigation, pleaded that the land is "Jumla Mushtarka Malkan" created during consolidation. A revenue estate, consists of two types of common land :- (i) "Shamilat Deh" as defined under the Punjab Village Common Lands (Regulation) Act, 1953, read with the `1961 Act' and (ii) the land, which is created after applying a pro rata cut on the holdings of proprietors, in accordance with sections 18, 23A of the 1948 Act, read along with Rule 16(ii) of the 1949 Rules, called "Jumla Civil Writ Petition No.4493 of 2007 7 Mushtarka Malkan". "Shamilat Deh" is governed by the 1953 Act and the 1961 Act whereas "Jumla Mushtarka Malkan" is governed by the Consolidation Act and Rules framed thereunder but more often than not, these two distinct types of common lands are wrongly treated as one.
"Shamilat Deh" is the common land of a village, and before it came to vest in a Gram Panchayat, as exclusive owner, under `1953 Act', it vested in proprietors. After repeal of the 1953 Act and enactment of the '1961 Act', "Shamilat Deh" continues to vest in a Gram Panchayat, except to the extent excluded, under the `1961 Act'.
'Jumla Mushtarka Malkan", on the other hand, is land created during consolidation by applying a pro rata cut on the holdings of proprietors and vests in a Gram Panchayat, under the Consolidation Act, for the sole purpose of management and control. Over a period of time, large tracts of "Shamilat Deh" and "Jumla Mushtarka Malkan", have been misappropriated by proprietors and/or by certain influential persons by obtaining orders from ever obliging consolidation authorities. It is once again reiterated that in the State of Punjab "Jumla Mushtarka Malkan", is land created and reserved under the Consolidation, Act, and Rules framed thereunder, whereas "Shamilat Deh" is land that vests in a Gram Panchayat under the Punjab Village Common Lands(Regulation) Act, 1953 and the 1961 Act.
A set of proprietors, namely, Gurdial Singh etc. filed a petition under section 42 of the 1948 Act, before the Director Civil Writ Petition No.4493 of 2007 8 Consolidation, claiming that the land, in dispute, does not vest in the Gram Panchayat, as it is "Jumla Mushtarka Malkan", and should, therefore, be returned to them. The proprietors pleaded that as the land was created by imposing an incorrect cut on the holdings of proprietors and it should be returned to proprietors. The proprietors impleaded a body, known as "Jumla Mushtarka Malkan" as respondent. The Gram Panchayat put in appearance and opposed the application on the plea that the application filed after 30-35 years, was barred and, even otherwise, the land is not "Jumla Mushtarka Malkan", but "Shamilat Deh". The then Additional Director, Consolidation, Punjab, though conscious of the fact that the land is "Shamilat Deh" proceeded to hold that no question of limitation arises as mistakes and irregularities can be corrected at any time and without recording as to what are these mistakes or errors, proceeded to hold that "Shamilat Deh Hasab Rasad Zare Khewat", belongs to khewatdars and has to be returned to them. The application was allowed and the land was ordered to be returned to the khewatdars. The legality of order dated 10.6.1997, passed by the Additional Director, Consolidation, is the main bone of contention between the parties with the Gram Panchayat alleging that this order is without jurisdiction and the respondents claiming that this order does not suffer from any error.
The Gram Panchayat filed a petition under section 11 of the 1961 Act, claiming ownership on the plea that as the land is "Shamilat Deh", it vests in the Gram Panchayat. The respondents raised a plea that as the Additional Director, Consolidation, has held Civil Writ Petition No.4493 of 2007 9 that land belongs to proprietors and had ordered its partition, the land does not vest in the Gram Panchayat. The Collector, after due consideration of the revenue record, held that as the land is "Shamilat Deh", is described as "Gair Mumkin Choe" and "Banjar Qadim" etc., it vests in the Gram Panchayat.
Aggrieved by this order, the respondents filed an appeal by asserting that as the land is "Shamilat Deh Hasab Rasad Zare Khewat", and recorded as "Khud Kasht Va Makbuja Malkan", it does not vest in the Gram Panchayat. The respondents primarily pressed into service order dated 10.6.1997 passed by the Additional Director, Consolidation, holding that land does not belong to the Gram Panchayat as well as various jamabandis. The Director, Rural Development and Panchayats, Punjab, vide order dated 12.4.2006, accepted the appeal and by a strange process of reasoning, devoid of any foundation, whether in law or in fact, reversed the order passed by the Collector and had held that the land belongs to proprietors. The operative part of the impugned order reads as follows:
" After hearing the arguments and examining the written arguments of the appellants, I have come to the conclusion that as per Jamabandis for the year 1939-40, 1955-56, 1965-66, 1979-80, 1982-83, 1997-98 the land is recorded in the column of ownership as "Shamlat Deh Hasab Rasad Zare Khewat" and in the column of possession as "Khud Kasht Va Makbuja Malkan". The wazib Ul Arz of the village also mentions that barring the Civil Writ Petition No.4493 of 2007 10 Shamlat Deh which will be used by the residents without charge, the fruits of other pooled common lands will be shared by the land owners of the village in proportion to their holding. In the light of discussion above and the settled case law of Supreme Court of India as in Gurjant Singh Vs. State of Punjab, I do not see any infirmity in the order of the Director Consolidation dated 10.6.1997 and declare that the land in question does not fall in the definition of Shamlat Deh as per section 2(g) of the Punjab Village Common Lands Act, 1961. With these orders, the appeal is accepted..."
A perusal of the above extract reveals that the Director Consolidation Rural Development and Panchayat has reversed order passed by the Collector and held that the land does not belong to the Gram Panchayat on the following grounds:- (a) as per jamabandis, the land is "Shamilat Deh Hasab Rasad Zare Khewat"
and recorded as "Khud Kasht Va Makbuja Malkan"; (b) The Wazib- Ul-Arz of the village records that residents of the village use "Shamilat Deh" without charge and the fruits of the common land will be shared by land owners in proportion with their holdings; (c) a judgment of the Hon'ble Supreme Court in Gurjant Singh versus State of Punjab, which has settled the matter in dispute; and (d) order passed by the Additional Director,Consolidation on 10.6.1997, is legal and valid.
The impugned order, in our considered opinion, is factually and legally incorrect and discloses a blatant and mala Civil Writ Petition No.4493 of 2007 11 fide attempt by the Director, Rural Development and Panchayats, Punjab, to place his stamp of approval on an illegal order passed by the Additional Director, Consolidation, by a reference to facts that were neither germane nor relevant for the controversy before him.
The expression "Shamilat Deh Hasab Rasad Zare Khewat", proves, without any ambiguity, that the land is "Shamilat Deh". Section 2(g)(1) of the 1961 Act, declares that "Shamilat Deh"
shall include land described as "Shamilat Deh". The nature of the land and its use as common land is determined by the words "Shamilat Deh" and not by the words "Hasab Rasad Zare Khewat". The latter expression refers to the method of calculating share holdings of proprietors prior to the vesting of "Shamilat Deh" in a Gram Panchayat firstly under 1954 Act and thereafter under the 1961 Act. A reference in this regard may be made to judgments of this Court in Kashmir Singh and others versus Joint Development Commissioner (IRD) Punjab, Chandigarh and others, 2006(1) LAR 606 (P&H DB); Bakshish Singh versus State of Punjab and others, 2011 (1) LAR 460 (P&H) and Sita Ram etc. versus Gram Panchayat Ismalia etc. 2008(1) LAR 358 (P&H DB). The jamabandies referred to in the impugned order record that the land is "Shamilat Deh". It is, therefore, beyond comprehension as to how the learned Director, Rural Development and Panchayats, could hold that the land, in dispute, is not "Shamilat Deh". The land, in dipuste, is "Shamilat Deh", and came to vest in the Gram Panchayat under the 1953 Act and as it does not fall within any of the exclusion clauses, set out in the 1961 Act, it vests in the Gram Panchayat under section 3 of the Civil Writ Petition No.4493 of 2007 12 1961 Act. The Director, Rural Development and Panchayat, did not notice this position in law and, committed an error of jurisdiction in holding that "Shamilat Deh Hasab Rasad Zare Khewat" vests in proprietors. The other expression "Khud Kasht Va Makbuja Malkan"
refers to the possession, in common, of proprietors before 1953 and after 1953 of the Gram Panchayat. The land is, admittedly, a seasonal rivulet and Banjar Qadim etc. and, therefore, there is no question of any one cultivating this land.
As regards reference to entries in the Wazib-Ul-Arz, suffice it to state, that after vesting of the land in the Gram Panchayat, the rights of proprietors as well as of the Gram Panchayat are governed by the 1953 Act and the 1961 Act. The entries in Wazib-Ul-Arz, relating to rights in "Shamilat Deh" are rendered superfluous and irrelevant. The finding recorded by the Director, Rural Development and Panchayat on the basis of entries, in the Wazib-ul-Arz, is patently illegal.
The learned Director, Rural Development and Panchayats has referred to a judgment of the Hon'ble Supreme Court in Gurjant Singh Versus State of Punjab, though without referring to its complete citation. We presume that the appellate authority was referring to a Division Bench Judgment of this court namely Gurjant Singh versus State of Punjab, 2000(2) RCR (Civil) 437. The judgment in Gurjant Singh's case (supra) does not apply to "Shamilat Deh" as it relates to redistribution of "Bachat land", i.e., land that is left over after creating "Jumla Mushtarka Malkan" by consolidation authorities and is, therefore, entirely irrelevant for the Civil Writ Petition No.4493 of 2007 13 purposes of determining rights in "Shamilat Deh".
It would, now be appropriate to deal with the order passed by the Director Consolidation. The Director, Rural Development and Panchayat, has relied upon order dated 10.6.1997, passed by the Director, Consolidation, to hold that the land, in dispute, does not belong to the Gram Panchayat. Reliance, by the Director, Rural Development and Panchayat, upon this order, in our considered opinion, is another pointer to the mala fide manner in which the impugned order was passed. The "Consolidation Act" as explained in the earlier part of this order, does not govern the manner in which land described as "Shamilat Deh" shall vest in a Gram Panchayat. The vesting or non-vesting of "Shamilat Deh" in a Gram Panchayat, takes place under the 1953 Act or the 1961 Act. Consolidation authorities have no jurisdiction, even during consolidation to deal with "Shamilat Deh" except to the extent of delimiting the "Shamilat Khewat". The Consolidation Act does not contain any provision conferring jurisdiction upon consolidation authorities to decide a question of title whether between private parties or between a Gram Panchayat and another individual. The Consolidation Act, does not create or vest rights, in "Shamilat Deh", whether upon the Gram Panchayat or private individuals. Consolidation authorities have no jurisdiction to entertain a plea of ownership with respect to "Shamilat Deh", much less, on the premise that the land belongs to proprietors. Despite the lack of any ambiguity in the law, consolidation authorities have, time and again, by mala fide assumption of jurisdiction, proceeded to partition the Civil Writ Petition No.4493 of 2007 14 "Shamilat Khewat" amongst proprietors, a course impermissible in law, fraudulent in its inception and arbitrary in its exercise.
The jurisdiction of consolidation authorities to partition the "Shamilat Khewat" or to hold that "Shamilat Land" does not vest in a Gram Panchayat, came up for consideration before the Hon'ble Supreme Court in the following cases:- G.P.Nurpur versus State of Punjab and others 1997(1) PLJ, 269 and Gram Panchayat Sidh versus State of Punjab, 1997(1) PLJ, 313. After considering the provisions of the 1961 Act, it was held that consolidation authorities have no jurisdiction to hold whether land described as "Shamilat Deh" vests or does not vest in a Gram Panchayat or to order partition of this land amongst proprietors. The only authority vested with such power is the Collector, exercising powers under section 11 of the 1961 Act. It is near impossible for us to accept that the appellate authority was not aware of these judgments or of sections 11 and 13-B of the 1961 Act. Section 13-B of the 1961 Act clearly postulates that notwithstanding anything to the contrary contained or held in any order passed by any authority or court, the provisions of the 1961 Act, shall prevail. It is, therefore, beyond debate that as order passed by the Additional Director, Consolidation on 10.6.1997 was without jurisdiction, by the Director, Rural Development and Panchayats, Punjab, was required to ignore it under section 13-B of the 1961 Act. Even otherwise, an order passed by an authority that had no jurisdiction, is not binding upon the forum conferred with jurisdiction, to decide a question of title, in this case the Collector and the Director, Rural Development and Panchayat.
Civil Writ Petition No.4493 of 2007 15
Upon conclusion of consolidation proceedings, authorities under the Consolidation Act are functus officio except to the extent of powers conferred by Sections 42 and 43-A of the Consolidation Act. The Director Consolidation had no jurisdiction to entertain the petition after a delay of four decades.
The judgments cited by counsel for the respondents do not apply to the controversy in hand. The land, in dispute, is "Shamilat Deh", whereas the judgments relate to `Jumla Mushtarka Malkan' and even otherwise, do not advance the respondents' case in any manner. It would be appropriate to point out that before the Director Consolidation, the plea was that the land is "Shamilat Deh"
in possession of proprietors but before the Collector and the Appellate Authority the plea was that the land is "Jumla Mushtarka Malkan". The respondents have tried every trick in the book to confuse the issue and the obliging Director, Rural and Development Panchayat, accepted their plea, in a mala fide and arbitrary exercise of jurisdiction.
In view of what has been stated herein above, we have no hesitation in holding that order dated 12.4.2006 passed by the Director, Rural Development and Panchayat, accepting the appeal filed by respondents is illegal and void, the order dated 10.6.1997 passed by the Additional Director, Consolidation, is a nullity and the Collector rightly held that the land belongs to the Gram Panchayat and not to the private respondents.
Accordingly, the writ petition is allowed, order dated 12.4.2006 passed by the Director, Rural Development and Civil Writ Petition No.4493 of 2007 16 Panchayats, Punjab (exercising powers of the 'Commissioner')is set aside and the order dated 13.9.2004 passed by the Collector, is restored. No orders as to costs.
( RAJIVE BHALLA )
JUDGE
( REKHA MITTAL )
October, 2012 JUDGE
VK/ avin